Equal Employment Opportunity Commission v. Catastrophe Management Solutions Petition for Writ of Certiorari

    In The

No.

Supreme Court of tlje ®mteti H>tate£

Equal Employment Opportunity Commission,
Petitioner,

v.

Catastrophe Management Solutions,
Respondent.

On Petition for Writ of Certiorari 
to the United States Court of Appeals 

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Sherrilyn A. Ifill 
Director-Counsel 

Janai S. Nelson 
Samuel Spital*
Jin Hee Lee 
Rachel M. Kleinman 
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector Street 
5th Floor
New York, NY 10006 
(212) 965-2200 
sspital@naacpldf.org

April 4, 2018 ____________

Jennifer A. Holmes 
Daniel S. Harawa 
NAACP Legal Defense & 

Educational Fund, Inc 
1444 I Street, NW 
10th Floor
Washington, DC 20005

Counsel for Petitioner 
Chastity Jones

*  Counsel of Record

mailto:sspital@naacpldf.org


QUESTION PRESENTED
Chastity Jones, an African-American woman, was 

hired for a position at a call center by Catastrophe 
Management Solutions, Inc. (“CMS”). CMS then 
rescinded her job offer solely because Ms. Jones’s hair 
was in natural Iocs (or “dreadlocks”), which CMS’s 
Human Resources Manager contended “tend to get 
messy” and therefore violated CMS’s grooming policy. 
The United States Court of Appeals for the Eleventh 
Circuit upheld the dismissal of the Complaint, on the 
ground that Title VII does not prohibit discrimination 
based on “mutable” characteristics. This decision 
contravenes controlling precedent in Price 
Waterhouse u. Hopkins, 490 U.S. 228 (1989), where 
this Court ruled that Title VII prohibits 
discrimination on the basis of stereotypes—in that 
case, concerning the “mutable” traits of a female 
employee’s demeanor, dress, and hairstyle.

The question presented is:
Whether an employer’s reliance on a false racial 

stereotype to deny a job to an African-American 
woman is exempt from Title VII’s prohibition on 
racial discrimination in employment solely because 
the racial stereotype concerns a characteristic that is 
not immutable.

(i)



PARTIES TO THE PROCEEDING
Petitioner Chastity Jones is an individual and 

citizen of Alabama who was the real party in interest 
in the proceedings below. The Equal Employment 
Opportunity Commission (“EEOC”) was the plaintiff 
and appellant in the proceedings below and brought 
this action based on its investigation of Ms. Jones’s 
charge of discrimination. Respondent Catastrophe 
Management Solutions, Inc. was the defendant and 
appellee in the proceedings below.

(ii)



CORPORATE DISCLOSURE STATEMENT
Counsel for Ms. Jones, the NAACP Legal Defense 

and Educational Fund, Inc., is a non-profit 
organization that has not issued shares of stock or 
debt securities to the public and has no parent 
corporation, subsidiaries, or affiliates that have 
issued shares of stock or debt securities to the public.

(iii)



TABLE OF CONTENTS

QUESTION PRESENTED ...........................   i

PARTIES TO THE PROCEEDING......................   ii

CORPORATE DISCLOSURE STATEMENT..........iii

TABLE OF AUTHORITIES....................................... vii

OPINIONS BELOW........................................................1

JURISDICTION.............................................................. 1

STATUTORY PROVISIONS INVOLVED..................2

STATEMENT OF THE CASE...................................... 3

I. CMS Rescinds Ms. Jones’s Job Offer
Because of Her Locs .............................................. 4

II. Proceedings in the District C ourt....................... 8

III. Proceedings in the Eleventh Circuit Court of
Appeals.........................................................    10

(iv)

PAGE(S)



(v)

TABLE OF CONTENTS
(CONTINUED)

PAGE(S)

REASONS FOR GRANTING THE WRIT................ 13

I. The Decision Below Contradicts this Court’s 
Title VII Precedent Forbidding Stereotype- 
Based Discrimination .............. ......................... 15

II. The Decision Below Conflicts with Decisions of 
Other Federal Circuits Concerning Title VII’s 
Prohibition on Stereotype-Based 
Discrimination ....................................................27

A. The Majority of Circuits Follow Price
Waterhouse Without Applying an 
Immutability T est.................................... 28

B. Other Circuits Have Specifically Held that
Title VII Prohibits Adverse Employment 
Actions Based on Racial Stereotypes .... 30

CONCLUSION 33



(vi)

TABLE OF CONTENTS
(CONTINUED)

PAGE(S)

APPENDIX

Opinion and Judgment of the United States 
Court of Appeals for the Eleventh 
Circuit.......................................................... App. la

Opinion and Order of the United States
District Court for the Southern District 
of Alabama................................................App. 34a

Order of the United States District Court
for the Southern District of Alabama.... App. 46a

Rehearing Order of the United States 
Court of Appeals for the Eleventh 
Circuit....................................................... App. 48a



TABLE OF AUTHORITIES

CASES:

Ash v. Tyson Foods, Inc.,
546 U.S. 454 (2006).................................................26

Ashcroft v. Iqbal,
556 U.S. 662 (2009)................................................ 25

Back v. Hastings On Hudson Union Free
Sch. Dist., 365 F.3d 107 (2d Cir. 2004)...........28, 29

Bibby v. Phila. Coca Cola Bottling Co.,
260 F.3d 257 (3d Cir. 2001).............................. 29, 30

Chadwick v. WellPoint, Inc.,
561 F.3d 38 (1st Cir. 2009)............................... 28, 29

Doe v. City of Belleville,
119 F.3d 563, 580 (7th Cir. 1997),.........................30

EEOC v. Boh Bros. Const. Co.,
731 F.3d 444 (5th Cir. 2013).................................. 29

EEOC v. Catastrophe Mgmt. Sols.,
11 F. Supp. 3d 1139 (S.D. Ala. 2014)............passim

EEOC v. Catastrophe Mgmt. Sols.,
837 F.3d 1156 (11th Cir. 2016).............................  10

(vii)

PAGE(S)



(viii)

EEOC v. Catastrophe Mgmt. Sols.,
852 F.3d 1018 (11th Cir. 2016)
reh’g denied, 876 F.3d 1273 (11th Cir. 2017)
............................................................................. passim

Franks v. Bowman Transp. Co.,
424 U.S. 747 (1976)..................................................15

Garcia v. Gloor,
618 F. 2d 264 (5th Cir. 1980)................................. 11

Glenn u. Brumby,
663 F.3d 1312 (11th Cir. 2011).............................. 29

Griggs v. Duke Power Co.,
401 U.S. 424 (1971)............................................. 3, 16

Jenkins v. Blue Cross Mut. Hosp. Ins.,
538 F. 2d 164 (7th Cir. 1976).................................12, 31

Lewis v. Heartland Inns of Am., LLC,
591 F.3d 1033 (8th Cir. 2010)................................ 29

L.A. Dep’t of Water & Power v. Manhart,
435 U.S. 702 (1978)................................................. 16, 17

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973)

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

15



Nichols v. Azteca Rest. Enters.,
256 F.3d 864 (9th Cir. 2001)............................  29-30

Price Waterhouse v. Hopkins,
490 U.S. 228 (1989)............................ ............ passim

St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502 (1993)...........................................  25-26

Satz u. ITT Fin. Corp.,
619 F,2d 738 (8th Cir. 1980).................................. 32

Smith v. City of Salem,
378 F.3d 566 (6th Cir. 2004).................................. 29

Smith v. Wilson,
705 F.3d 674 (7th Cir. 2013).................................. 32

Thomas v. Eastman Kodak Co.,
183 F.3d 38 (1st Cir. 1999)............................... 30, 31

U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711 (1983)............................... ..................26

Washington County v. Gunther,
452 U.S. 161 (1981)................................ .......... 15, 16

Willingham v. Macon Tel. Publ’g Co.,
507 F.2d 1084 (5th Cir. 1975).................................. 9

(ix)

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)



Zarcla v. Altitude Express, Inc:.,
883 F.3d 100 (2d Cir. 2018)..............................  28-29

STATUTES & RULES:

28 U.S.C.
§ 1331............................................................................ 9
§ 1337............................................................   9
§ 1343............................................................................ 9
§ 1345............................................................................ 9

42 U.S.C.
§ 2000e-2(a)...................................................................2
§ 2000e-2(e).................................................................17
§ 2000e-2(m).............................. .......................... 2, 20

Civil Rights Act of 1991, Pub. L. No. 102-166,
§ 107(a), 105 Stat. 1071, 1075 (1991)
(codified as amended at
42 U.S.C. § 2000e-2(m))........................... ................20

Sup. Ct. R. 10(a).......................... ........... ...............15, 27

Sup. Ct. R. 10(c).................................................... 15, 25

(x)

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)



(xi)

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

OTHER AUTHORITIES:

110 Cong. Rec. 7247........................................... ......... 16

Nikki Brown, Why the #ProfessionalLocs Hashtag 
Still Matters, ESSENCE (Oct. 25, 2016)................... 6

Paulette M. Caldwell, A Hair Piece: Perspectives 
on the Intersection of Race and Gender,
1991 Duke L.J. 365 (Apr. 1991).............. ............ 7, 8

Funmi Fetto, How to Guide: Tips for Caring 
for Afro Hair, GLAMOUR (June 15, 2016)................ 24

David S. Joachim, Military to Ease Hairstyle Rules 
After Outcry from Black Recruits, N.Y. TIMES 
(Aug. 14, 2014)...............................................  6

Alexis M. Johnson, et al ., The “Good Hair” Study: 
Explicit and Implicit Attitudes Toward Black 
Women’s Hair 6, Perception Institute (Feb.
2017).............................................................................. 7

Kayla Lattimore, When Black Hair Violates the 
Dress Code, NPR (July 17, 2017)............................. 6

David Moye, Mom Accuses Principal of Cutting Her 
Son’s Hair Without Permission, HUFF. POST 
(Mar. 28, 2018) 6



(xii)

PAGE(S)

Tania Padgett, Ethnic Hairstyles Can Cause 
Uneasiness in the Workplace, CHICAGO TRIBUNE 
(Dec. 12, 2007)............................................................. 7

Carla D. Pratt, Sisters in Law: Black Women 
Lawyers’ Struggle for Advancement,
2012 Mich. St. L. Rev. 1777 (2012)..........................7

Crystal Tate, 16-Year-Old Black Student with 
Natural Hair Asked by School to “Get Her Hair 
Done, ” E sse n c e  (May 16, 2017)................................ 7

Brown White, Releasing the Pursuit of Bouncin’ and 
Behavin’ Hair: Natural Hair as an Afrocentric 
Feminist Aesthetic for Beauty, 1 Int’l J. Media & 
Cultural Pol. 295 (2005).............................................4

John-John Williams IV, Afros, Dreads, Natural 
Styles More Popular, Still Controversial, Ba l t .
SUN (Mar. 4, 2015).................................................... 24

TABLE OF AUTHORITIES
(CONTINUED)



PETITION FOR WRIT OF CERTIORARI 
OPINIONS BELOW

The panel opinion of the United States Court of 
Appeals for the Eleventh Circuit, affirming the 
judgment of the district court, is reported at 852 F.3d 
1018 (11th Cir. 2016), and is reproduced at App. la- 
33a. The opinion of the United States Court of 
Appeals for the Eleventh Circuit, denying a petition 
for rehearing en banc, with accompanying concurring 
and dissenting opinions, is reported at 876 F.3d 1273 
(11th Cir. 2017), and is reproduced at App. 48a-86a. 
The opinion of the United States District Court for the 
Southern District of Alabama, dismissing the EEOC’s 
Title VII claim, is reported at 11 F. Supp. 3d 1139 
(S.D. Ala. 2014), and is reproduced at App. 34a-45a. 
The opinion of the United States District Court for the 
Southern District of Alabama, denying leave to file 
the Amended Complaint, is unreported and is 
reproduced at App. 46a-47a.

JURISDICTION
The court of appeals entered its judgment on 

December 13, 2016. The EEOC filed a timely petition 
for rehearing en banc on December 23, 2016, which 
the court of appeals denied on December 5, 2017. On 
February 28, 2018, this Court extended the time for 
Ms. Jones to file a petition for writ of certiorari by 30 
days. Order on Application No. 17A902. With this 
petition, Petitioner also files a motion for leave to 
intervene in this case. This Court has jurisdiction 
under 28 U.S.C. § 1254(1).



2

STATUTORY PROVISIONS INVOLVED
Section 703(a) of Title VII of the Civil Rights Act 

of 1964 provides:
(a) It shall be an unlawful employment 
practice for an employer -
(1) to fail or refuse to hire or to discharge 
any individual . . . because of such 
individual’s race, color, religion, sex, or 
national origin; or
(2) to limit, segregate, or classify his 
employees or applicants for employment 
in any way which would deprive or tend 
to deprive any individual of employment 
opportunities or otherwise adversely 
affect his status as an employee, because 
of such individual’s race, color, religion, 
sex, or national origin.

42 U.S.C. § 2000e-2(a).
Section 703(m) of Title VII of the Civil 

Rights Act of 1964 provides:
(m) Except as otherwise provided in this 
subchapter, an unlawful employment 
practice is established when the 
complaining party demonstrates that 
race, color, religion, sex, or national 
origin was a motivating factor for any 
employment practice, even though other 
factors also motivated the practice.

42 U.S.C. § 2000e-2(m).



3

STATEMENT OF THE CASE
In enacting Title VII, Congress intended “the 

removal of artificial, arbitrary, and unnecessary 
barriers to employment when the barriers operate 
invidiously to discriminate on the basis of racial or 
other impermissible classification.” Griggs v. Duke 
Power Co., 401 U.S. 424, 431 (1971). In an age where 
employment discrimination rarely presents itself in 
policies that explicitly exclude employees based on 
skin color, the vitality of Title VII depends on its 
ability to root out more subtle practices—facially 
neutral policies, racial proxies, stereotyped 
thinking—that still operate to disfavor applicants 
based on their race. The economic security and 
dignity of working people depend on the application of 
Title VII to remove discriminatory obstacles from the 
path of equal employment opportunity.

The decision below diverges from this Court’s 
precedents by categorically insulating a form of 
discrimination from Title VII’s reach: employment 
decisions motivated by racial stereotypes but 
expressed as restrictions on “mutable” 
characteristics. This Court should grant certiorari 
because reading an immutability requirement into 
Title VII is inconsistent with this Court’s decisions 
and an outlier position among the courts of appeal. 
Policies unrelated to merit or job function but based 
on racial stereotypes have no place in a fair and equal 
workplace.



4

I. CMS Rescinds Ms. Jones’s Job Offer 
Because of Her Locs.

Chastity Jones, an African-American woman, 
applied online for a position as a Customer Service 
Representative with Catastrophe Management 
Solutions, Inc. that entailed handling claims 
processing at a call center. Am. Compl. f  10, ECF No. 
21-1. The position did not require in-person contact 
with customers or the public. Id. CMS invited Ms. 
Jones to an in-person interview, to which she wore a 
blue business suit with dark pumps. Id. f  12. At the 
time, Ms. Jones had short, well-kept locs (or 
“dreadlocks”).1 Shortly after the interview, CMS’s 
Human Resource Manager, Jeannie Wilson, informed 
Ms. Jones and other selected applicants that they 
were hired. Id. ]f 14.

After telling Ms. Jones that she was hired, Ms. 
Wilson and Ms. Jones had a private meeting about 
scheduling. Id.  ̂ 15. In that meeting, Ms. Wilson 
asked Ms. Jones whether her hair was in 
“dreadlocks.” Id. f  16. When Ms. Jones answered 
affirmatively, Ms. Wilson informed her that CMS 
could not hire her with her locs. Id. Ms. Jones asked 
why her hair was a problem, and Ms. Wilson stated 1

1 Except where quoting the record below, this petition uses the 
term “locs” to describe Ms. Jones’s hair and similar styles worn 
by innumerable Black persons across professions. Some prefer 
the term “locs” or “locks,” as the term “dreadlocks” originated 
from the historical disparagement of Black slaves. See Am. 
Compl. f  20; Brown White, Releasing the Pursuit of Bouncin’ and 
Behavin’ Hair: Natural Hair as an Afrocentric Feminist Aesthetic 
for Beauty, 1 Int’l J. Media & Cultural Pol. 295, 296 n.3 (2005) 
(“[T]he term dreadful was used by English slave traders to refer 
to Africans’ hair, which had probably loc’d naturally on its own 
during the Middle Passage.”) (emphasis added).



5

that Iocs “tend to get messy, although I’m not saying 
yours are, but you know what I’m talking about.” Id. 
Ms. Jones refused to cut off her hair, and Ms. Wilson 
told her that CMS would not hire her and asked her 
to return the paperwork for new hires.

At the time, CMS had a written grooming policy, 
which stated: “All personnel are expected to be 
dressed and groomed in a manner that projects a 
professional and businesslike image while adhering 
to company and industry standards and/or guidelines 
. . . hairstyle [s] should reflect a business/professional 
image. No excessive hairstyles or unusual colors are 
acceptable . . . . ” Id. U 17. The policy did not expressly 
refer to Iocs or dreadlocks. Id.  ̂ 18. Ms. Jones had 
short Iocs, and CMS did not suggest her hairstyle was 
“excessive.” Instead, CMS interpreted its policy to 
prohibit Iocs based on the stereotype that they tend to 
“get messy” and withdrew Ms. Jones’s offer of 
employment on that basis, despite assuring her that 
her own hair did not fit that description. Id. *|j 16.

Locs are a style commonly worn by people of 
African descent, in which natural Black hair forms 
into larger coils. Id. 8, 19. In our society, locs are 
generally associated with Black people. Id. f  26. The 
texture of Black hair makes it conducive to the 
development of locs, which can be formed with 
manipulation (“cultivated locs”) or without (“freeform 
locs”). See id. f  19. Numerous prominent Black 
Americans—especially in the arts and the academy— 
wear locs, including Toni Morrison, Alice Walker, Ava 
DuVernay (film director), Heather Williams (former 
Assistant Attorney General for the State of New 
York), Angela Smith Jones (Deputy Mayor of 
Indianapolis and a former leader of the Indianapolis



6

Chamber of Commerce), Vincent Brown (Harvard 
professor), and many less well-known individuals.2

Yet, Iocs are often the target of scorn and derision 
based on long-held stereotypes that natural Black 
hair is dirty, unprofessional, or unkempt. Am. Compl. 
U1f 27, 30. Indeed, the term “dreadlocks” originated 
from slave traders’ descriptions of Africans’ hair that 
had naturally formed into Iocs during the Middle 
Passage as “dreadful.” Id. ]j 20.

The stereotype that Black natural hairstyles are 
dirty or unkempt and therefore not appropriate for 
more formal settings remains unfortunately 
widespread. For example, until 2014, the U.S. 
military banned a number of common Black 
hairstyles, including cornrows and braids.3 School 
administrators and dress codes also often restrict 
Black natural hairstyles, and in one dramatic recent 
episode, a school principal reportedly took scissors to 
a Black student’s Iocs.4

2 Nikki Brown, Why the #ProfessionalLocs Hashtag Still Matters,
Essence (Oct. 25, 2016),
https://www.essence.com/beauty/professionallocs-hashtag 
(compiling photos and statements of Black professionals with 
Iocs).
3 David S. Joachim, Military to Ease Hairstyle Rules After Outcry
from- Black Recruits, N.Y. TIMES (Aug. 14, 2014),
https://www.nytimes.com/2014/08/15/us/military-hairstyle- 
rules-dreadlocks-cornrows.html.
4 David Moye, Mom Accuses Principal of Cutting Her Son’s Hair
Without Permission, HUFF. POST (Mar. 28, 2018),
https://www.huffingtonpost.com/entry/mississippi-boy-hair-locs- 
cut-principal_us_5abbfa33e4b03e2a5c78e34d; see also Kayla 
Lattimore, When Black Hair Violates the Dress Code, NPR 
(July 17, 2017),
https://www.npr.org/sections/ed/2017/07/17/534448313/when- 
black-hair-violates-the-dress-code (describing two Black

https://www.essence.com/beauty/professionallocs-hashtag
https://www.nytimes.com/2014/08/15/us/military-hairstyle-rules-dreadlocks-cornrows.html
https://www.nytimes.com/2014/08/15/us/military-hairstyle-rules-dreadlocks-cornrows.html
https://www.huffingtonpost.com/entry/mississippi-boy-hair-locs-cut-principal_us_5abbfa33e4b03e2a5c78e34d
https://www.huffingtonpost.com/entry/mississippi-boy-hair-locs-cut-principal_us_5abbfa33e4b03e2a5c78e34d
https://www.npr.org/sections/ed/2017/07/17/534448313/when-black-hair-violates-the-dress-code
https://www.npr.org/sections/ed/2017/07/17/534448313/when-black-hair-violates-the-dress-code


7

The belief that natural hairstyles for Black 
women are inappropriate in the workplace has 
particular and longstanding currency. A recent study 
found that White women, on average, show explicit 
bias against “black women’s textured hair,” rating it 
“less professional than smooth hair.”5 And that 
stereotype is communicated to Black women in a 
variety of ways. For example, at a 2007 event hosted 
by a prominent law firm, a Glamour editor told a 
roomful of female attorneys that “afro-styled hairdos 
and dreadlocks are Glamour don’t’s.”6

Given these attitudes about their hair, it is no 
surprise that a recent study found many Black women 
feel pressure to straighten their hair for work.7 In

students punished for wearing braids); Crystal Tate, 16-Year- 
Old Black Student with Natural Hair Asked by School to “Get 
Her Hair Done,” ESSENCE (May 16, 2017),
https://www.essence.com/hair/natural/black-student-natural- 
hair-asked-to-get-hair-done.
5 See Alexis M. Johnson, et al., The “Good Hair” Study: 
Explicit and Implicit Attitudes Toward Black Women’s 
Hair 6, Perception Institute (Feb. 2017),
https://perception.org/wp-content/uploads/2017/01/TheGood-
HairStudyFindingsReport.pdf.
6 Tania Padgett, Ethnic Hairstyles Can Cause Uneasiness in the
Workplace, CHICAGO TRIBUNE (Dec. 12, 2007),
http://articles.chicagotribune.com/2007-12-
12/features/0712100189_l_hair-glamour-dreadlocks; see also 
Paulette M. Caldwell, A Hair Piece: Perspectives on the 
Intersection of Race and Gender, 1991 DUKE L.J. 365, 367, 368 
n.7 (Apr. 1991) (describing Hyatt’s firing of an African-American 
woman for wearing her hair in braids; in justifying the firing, 
Hyatt’s personnel manager stated: “What would our guests 
think if we allowed you to wear your hair like that?”).
7 See JOHNSON, “Good Hair” Study, supra note 5 at 12; Carla D. 
Pratt, Sisters in Law: Black Women Lawyers’ Struggle for 
Advancement, 2012 Mich. St. L. Rev. 1777, 1784 (2012).

https://www.essence.com/hair/natural/black-student-natural-hair-asked-to-get-hair-done
https://www.essence.com/hair/natural/black-student-natural-hair-asked-to-get-hair-done
https://perception.org/wp-content/uploads/2017/01/TheGood-
http://articles.chicagotribune.com/2007-12-


8

other words, many Black women who wish to succeed 
in the workplace feel compelled to undertake costly, 
time-consuming, and harsh measures to conform 
their natural hair to a stereotyped look of 
professionalism that mimics the appearance of White 
women’s hair. Professor Paulette Caldwell described 
this fraught choice:

For blacks, and particularly for black 
women, [hairstyle] choices . . . reflect the 
search for a survival mechanism in a 
culture where [their] social, political, 
and economic choices . . . are conditioned 
by the extent to which their physical 
characteristics, both mutable and 
immutable, approximate those of the 
dominant racial group.8

In this case, there was nothing subtle or indirect 
about the pressure on Ms. Jones to change her natural 
hairstyle if she wanted to succeed at work. Based on 
stereotyped assumptions about Ms. Jones’s natural 
hair, CMS’s human resources manager told Ms. Jones 
she would have to either cut off her Iocs or lose her 
offer of employment.

II. Proceedings in the District Court
After CMS rescinded its job offer, Ms. Jones 

timely filed a charge of discrimination with the Equal 
Employment Opportunity Commission (“EEOC”). 
Am. Compl. [̂ 6. In September 2013, the EEOC filed 
this action against CMS on Ms. Jones’s behalf, 
alleging that CMS engaged in intentional race-based 
discrimination in violation of Title VII, seeking 
monetary relief for Ms. Jones and an injunction. App.

8 Caldwell, A Hair Piece, supra note 6 at 383.



9

2a. The Complaint alleged that CMS discriminated 
against Ms. Jones based on her race by interpreting 
its grooming policy to require her to cut off her Iocs as 
a condition of her employment. Compl. *[[f 9-13, ECF 
No. 1. Jurisdiction was proper under 28 U.S.C. 
§§ 1331, 1337, 1343, and 1345. Id. f  1.

CMS moved to dismiss the Complaint. Asserting 
that employees “can control their dress, makeup, and 
hair styling,” CMS contended its policy against Iocs 
was outside the scope of Title VII because it did not 
apply to immutable characteristics. Def.’s Mot. to 
Dismiss 2, ECF No. 7.

In January 2015, the district court granted CMS’s 
motion, relying on Willingham v. Macon Tel. Publ’g 
Co., 507 F.2d 1084 (5th Cir. 1975) (en banc), which 
predates this Court’s decision in Price Waterhouse. 
App. 39a-41a, 44a. The district court concluded that 
Title VU’s protections are limited to discrimination on 
the basis of immutable characteristics, which 
excludes “a hairstyle, even one more closely 
associated with a particular ethnic group.” App. 42a. 
In rejecting arguments that Iocs are a racial identifier 
and that CMS’s decision not to hire Ms. Jones was 
based on a racial stereotype, the district court 
reasoned that Iocs are not “exclusively]” worn by 
Blacks and are “not inevitable and immutable” 
despite being “a reasonable result of [Black] hair 
texture, which is an immutable characteristic.” App. 
44a. The district court also denied the EEOC’s motion 
for leave to amend, finding that the Amended 
Complaint “offers nothing new” and would be futile in 
light of the court’s interpretation of Title VII. App. 
46a-47a. The EEOC timely filed an appeal. App. 7a.



10

III. Proceedings in the Eleventh Circuit 
Court of Appeals

In its appeal, the EEOC argued that the district 
court erred in holding that the EEOC had not pleaded 
a prima facie case of disparate treatment. The EEOC 
contended that the district court wrongly 
characterized its claim as merely concerning a 
grooming requirement divorced from its racial 
context. Appellant’s Br. at 18. The EEOC pointed out 
that its Amended Complaint contained detailed 
allegations about the nexus between Iocs and race, 
which supported a claim that the adverse 
employment action against Ms. Jones was intentional 
race-based discrimination. Id. Among other 
allegations, the Amended Complaint pleaded that 
CMS’s stated reason for prohibiting Iocs (they “tend to 
get messy”) was based on stereotypes about Black 
natural hair and a preference for White hair 
conventions. Id. at 12, 31-32. The EEOC argued that 
in light of these allegations, the district court erred in 
dismissing the Complaint and denying leave to 
amend. Id. at 13.

In December 2016, the Eleventh Circuit affirmed 
the district court’s decision.9 The court held that the 
EEOC’s Amended Complaint10 did not state a claim of

9 The Eleventh Circuit issued a prior opinion in September 2016, 
but subsequently withdrew and replaced that opinion in 
December. 837 F.3d 1156 (11th Cir. 2016), withdrawn and 
superseded, 852 F.3d 1018 (11th Cir. 2016). This petition 
discusses only the latter opinion.
10 As the Eleventh Circuit recognized, the operative allegations 
here are those in the Amended Complaint. App. 6a. (“Like the 
district court, we accept as true the well-pleaded factual 
allegations in the proposed amended complaint.”). Unless



11

intentional discrimination because Title VII prohibits 
discrimination on the basis of “immutable 
characteristics,” and the EEOC did not allege that 
Iocs are an immutable trait of Black persons. App. 2a. 
Noting that Title VII did not define the word “race,” 
the panel surveyed dictionaries contemporaneous 
with the passage of the Civil Rights Act of 1964, 
concluding that “‘race’ as a matter of language and 
usage, referred to common physical characteristics 
shared by a group of people and transmitted by their 
ancestors over time.” App. 14a-17a. The panel 
determined that “immutable” was an apt term to 
describe such characteristics, while conceding that 
the word did not appear in any of the definitions of 
“race” in the dictionaries it consulted. Id.

Viewing itself bound by Willingham (holding 
employer’s policy about hair length for male 
employees was not sex discrimination), and Garcia v. 
Gloor, 618 F. 2d 264 (5th Cir. 1980) (holding 
employer’s English-only rule was not discrimination 
on the basis of national origin), the panel further 
concluded that circuit precedent dictated that Title 
VII applies to protected classes “with respect to their 
immutable characteristics, but not their cultural 
practices.” App. 22a. The panel did not cite Price 
Waterhouse or discuss its effect on Willingham or 
Garcia. The panel recognized that one of the EEOC’s 
arguments for reversal was that CMS’s application of 
its grooming policy to deny Ms. Jones’s employment 
constituted racial stereotyping in violation of Title 
VII, App. 9a, but it did not address that argument.

otherwise noted, the Petition therefore refers to the “Amended 
Complaint” as the “Complaint.”



12

While acknowledging the difficulty in 
administering an immutable/mutable distinction, the 
panel nevertheless concluded that it was required by 
Title VII. App. 22a-23a. In the panel’s view, that 
distinction allowed it to reconcile its decision in this 
case with Jenkins v. Blue Cross Mut. Hosp. Ins., 538 
F. 2d 164 (7th Cir. 1976) (en banc), cert, denied, 429 
U.S. 986 (1976), which recognized that discrimination 
against a Black employee for wearing her hair in an 
afro violated Title VII. Id. The panel did not, 
however, explain why afros should be considered 
immutable but Iocs mutable: both are natural Black 
hairstyles but neither is unchangeable.

The EEOC petitioned the Eleventh Circuit to 
rehear the case en banc. The EEOC maintained that 
it had stated a plausible claim of race discrimination, 
specifically, that CMS’s ‘ interpretation of] its 
appearance policy to impose a per se ban on 
dreadlocks” evinced a preference for “Caucasian hair 
and style standards” and placed on Black applicants 
the burden of meeting those conventions. Appellant’s 
Pet. for Reh’g at 6-7. The EEOC criticized the panel’s 
immutability standard as inconsistent with Price 
Waterhouse and leading to absurd distinctions 
between afros and Iocs. Id. at 10-12.

The Eleventh Circuit denied the petition for 
rehearing en banc. Judge Martin, joined by Judges 
Rosenbaum and Jill Pryor, dissented. Judge Martin 
argued that Willingham's immutability standard is 
no longer good law in light of Price Waterhouse, in 
which this Court recognized a Title VII claim where 
an employer’s decision was based on sex stereotypes 
concerning mutable characteristics, including dress, 
demeanor, and hairstyle. App. 67a-69a (Martin, J., 
dissenting). The dissent also criticized the



13

immutability standard as unadministrable and 
tangential to the key question of whether an employer 
who refuses to hire a Black applicant based on a racial 
stereotype has been motivated by race. App. 73a-76a, 
85a. The dissent explained that the Amended 
Complaint stated a plausible claim of disparate 
treatment because it alleged that CMS refused to hire 
Ms. Jones based on “the false racial stereotype” that 
Black natural hair is “unprofessional, extreme, and 
not neat,” expressed by the assumption that Iocs “tend 
to get messy” even while acknowledging that 
description did not in fact apply to Ms. Jones’s hair.11 
App. 60a, 76a-81a.

Judge Jordan concurred in the denial of 
rehearing. Judge Jordan acknowledged that tmder 
Price Waterhouse, when an employer targets a 
mutable trait that is linked by stereotype to a 
protected class, then discrimination on the basis of 
that protected class has occurred; nonetheless, he 
concluded that Willinghams immutability standard 
survived Price Waterhouse. App. 51a.

REASONS FOR GRANTING THE WRIT
In departing from this Court’s precedent, the 

Eleventh Circuit constricted one of the nation’s most 
important civil rights statutes, which is designed to 
protect the dignity of workers and ensure that an 
individual’s race does not limit her employment 
opportunities. 11

11 The dissent also concluded that the panel’s analysis was 
flawed even when applying the immutability standard because 
the Amended Complaint contained allegations that Iocs are 
immutable. App. 81a-83a.



14

Based on the well-pleaded allegations in the 
EEOC’s Amended Complaint, CMS refused to hire 
Chastity Jones, an African-American woman, because 
CMS’s representative believed that Mr. Jones’s 
natural hairstyle violated the company’s grooming 
policy, specifically because of the assumption that it 
would “tend to get messy.” In other words, “the 
complaint indicated that CMS’s only reason for 
refusing to hire Ms. Jones was [a] false racial 
stereotype.” App. 60a (Martin, J., dissenting). The 
Complaint stated a straightforward claim for relief 
under Title VII’s disparate-treatment standard.

The Eleventh Circuit, however, affirmed the 
district court’s dismissal of the case on the ground 
that Ms. Jones’s hairstyle was not an “immutable 
characteristic,” and that CMS’s discrimination 
against her was therefore beyond the purview of Title 
VII. That reasoning is squarely foreclosed by this 
Court’s precedent. This Court has ruled that Title VII 
reaches the full spectrum of employment 
discrimination related to race, color, religion, sex, or 
national origin. Consistent with this principle, the 
Court has specifically held that Title VII prohibits 
discrimination based on stereotypes relating to one of 
these protected categories, even when those 
stereotypes do not concern “immutable 
characteristics.” Stereotypes about appropriate 
grooming in the workplace that disqualify natural 
African-American hairstyles violate Title VII just as 
employers who favor narrow and stereotypical 
standards of appropriate hairstyles and dress for 
women violate Title VII’s prohibition against gender 
discrimination. Because the Eleventh Circuit has 
decided an important issue of federal law in a manner



15

that departs from this Court’s precedent, certiorari is 
warranted. Sup. Ct. R. 10(c).

Certiorari is also warranted because the Eleventh 
Circuit’s decision conflicts with the decisions of other 
federal courts of appeals on this important issue. See 
Sup. Ct. R. 10(a). Applying this Court’s precedent, 
courts in the First, Second, Third, Fifth, Sixth, 
Seventh, and Eighth Circuits have held that Title VII 
reaches discrimination based on stereotypes, without 
any “immutable characteristic” limitation. Further, 
the Seventh Circuit Court of Appeals has held that 
Title VII prohibits an employer from taking adverse 
action against a Black woman because, just like Ms. 
Jones here, she wore a natural hairstyle to work. 
Contrary to the Eleventh Circuit’s decision below, 
nothing in the statute or this Court’s precedent 
authorizes federal courts to distinguish among 
different Black natural hairstyles in deciding whether 
an employer’s stereotyped-based racial 
discrimination is prohibited by Title VII.

I. The Decision Below Contradicts this 
Court’s Title VII Precedent Forbidding 
Stereotype-Based Discrimination.

This Court has held that Title VII ‘“prohibit [s] all 
practices in whatever form which create inequality in 
employment opportunity due to discrimination on the 
basis of race, religion, sex, or national origin.’” 
Washington County v. Gunther, 452 U.S. 161, 180 
(1981) (quoting Franks v. Bowman Transp. Co., 424 
U.S. 747, 763 (1976)). The statute requires “fair and 
racially neutral employment and personnel 
decisions,” and it “tolerates no racial discrimination, 
subtle or otherwise.” McDonnell Douglas Corp. v. 
Green, 411 U.S. 792, 801 (1973).



16

Title VII’s strict prohibition on “discrimination, 
subtle or otherwise” includes discrimination based on 
stereotypes. As this Court has stated with respect to 
sex: “‘In forbidding employers to discriminate against 
individuals because of their sex, Congress intended to 
strike at the entire spectrum of disparate treatment of 
men and women resulting from sex stereotypes.”’ 
Washington County, 452 U.S. at 180 (quoting L.A. 
Dept of Water & Power v. Manhart, 435 U.S. 702, 707 
n.13 (1978)) (emphasis in Washington County). In 
other words, “employment decisions cannot be 
predicated on mere ‘stereotyped’ impressions about 
the characteristics of males or females.” Manhart, 
435 U.S. at 707. Indeed, “ [t]he statute’s focus on the 
individual” means that “ [ejven a true generalization 
about the class is an insufficient reason for 
disqualifying an individual to whom the 
generalization does not apply.” Id. at 708. Thus, “ [i]f 
height is required for a job, a tall woman may not be 
refused employment merely because, on the average, 
women are too short.” Id.

These principles likewise forbid “employment 
decisions . . . predicated on mere ‘stereotyped’ 
impressions about the characteristics” of any racial 
group. Id. Race, like sex, is an expressly protected 
category under Title VII, and eradicating racial 
discrimination in employment was Congress’s 
principal goal in enacting the statute. ‘“ [T]he very 
purpose of Title VII is to promote hiring on the basis 
of job qualifications, rather than on the basis of race 
or color.’” Griggs v. Duke Power Co., 401 U.S. 424, 434 
(1971) (quoting 110 Cong. Rec. 7247). Indeed, while 
an employer’s bona fide occupational qualification is 
a lawful defense to a claim of sex discrimination, there 
is no comparable defense to a claim of race



17

discrimination. 42 U.S.C. § 2000e-2(e). As this Court 
explained in Manhart, Title VII was “designed to 
make race irrelevant in the emploj^ment market.” 435 
U.S. at 709.

Far from being “irrelevant,” race was central to 
CMS’s decision to refuse to hire Ms. Jones. 
Specifically, CMS’s representative relied on a racial 
stereotype that Ms. Jones’s natural hairstyle could, in 
the future, make her appearance unprofessional. 
CMS’s representative told Ms. Jones that CMS could 
not hire her “with the dreadlocks,” because ‘“they tend 
to get messy, although I’m not saying yours are, but 
you know what I’m talking about.’” Am. Compl. f  16. 
In other words, the Complaint alleged that CMS’s 
stated concern about Iocs “did not apply to Ms. Jones, 
as the human resources manager acknowledged Ms. 
Jones’s hair was not messy,” thereby indicating “that 
CMS’s only reason for refusing to hire Ms. Jones was 
the false racial stereotype.” App. 60a (Martin, J., 
dissenting). The Amended Complaint further alleged 
that Iocs are “physiologically and culturally 
associated with people of African descent,” Am. 
Compl. ][ 28, and it explained the racialized nature of 
the stereotype that Iocs are unprofessional or will 
inevitably get messy, a belief “premised on a 
normative standard and preference for White hair,” 
id. 1 30. This belief dates back to slavery itself, 
during which slave traders referred to slaves’ hair as 
“dreadful” because, during the forced transport of 
Africans across the Atlantic, their hair would become 
matted with blood, feces, urine, sweat, tears, and dirt. 
Id. K 20. The Amended Complaint explained how this 
stereotype has persisted over time to shape 
assumptions about Black employees who wear



18

natural hairstyles in professional settings. Id. 1U 27, 
30.

Yet, despite CMS’s express reliance on a common 
racial stereotype that Black natural hair is “messy” to 
deny Ms. Jones employment, the district court 
granted CMS’s motion to dismiss, and the Eleventh 
Circuit affirmed. For both courts, the dispositive fact 
requiring dismissal of the disparate-treatment claim 
was that the EEOC had not alleged that Iocs are 
“immutable traits” or “immutable characteristics” of 
Black people. In the Eleventh Circuit’s words, “our 
precedent holds that Title VII prohibits 
discrimination based on immutable traits, and the 
proposed amended complaint does not assert that 
dreadlocks—though culturally associated with r a c e -  
are an immutable characteristic of black persons.” 
App. 2a; see also App. 22a-23a (similar); App. 42a 
(district court opinion) (holding that the complaint 
failed to state a claim because Ms. Jones’s “hairstyle .
. . is a mutable characteristic”).

The lower courts’ reasoning finds no support in 
Title VII, and it is contrary to this Court’s precedent 
that Title VII reaches the full spectrum of 
employment discrimination. Price Waterhouse v. 
Hopkins, 490 U.S. 228 (1989), is directly on point. In 
that case, Ann Hopkins presented evidence that she 
was denied a promotion because of her employer’s sex- 
based stereotypes, but “ [n]one of the traits the 
employer identified as its reasons for not promoting 
Ms. Hopkins were immutable.” App. 66a (Martin, J., 
dissenting). Instead, the stereotypes were that Ms. 
Hopkins’s personality and appearance—including her 
hairstyle—were too masculine. In the words of one of 
the Price Waterhouse partners who advised Ms. 
Hopkins about why she was denied a promotion, she



19

should ‘“walk more femininely, talk more femininely, 
dress more femininely, wear make-up, have her hair 
styled, and wear jewelry.’” Price Waterhouse, 490 U.S. 
at 235 (emphasis added).

Yet, far from rejecting Ms. Hopkins’s claims on 
the basis that her employer’s sex-based stereotypes 
involved mutable characteristics, this Court “held 
that discrimination on the basis of these traits, which 
Ms. Hopkins could but did not change, constituted sex 
discrimination. The Court explained that 
discrimination on the basis of these mutable 
characteristics—how a woman talks, dresses, or 
styles her hair—showed discrimination on the basis 
of sex.” App. 66a (Martin, J. dissenting) (discussing 
Price Waterhouse).

Indeed, although members of this Court 
disagreed about other issues in Price Waterhouse, the 
Court was united on this point. The four-justice 
plurality explained that when an employer acts on 
“stereotypical notions about women’s proper 
deportment,” 490 U.S. at 256, it has “acted on the 
basis of gender” in violation of Title VII, id. at 250; see 
also id. at 251, 255. Similarly, in her opinion 
concurring in the judgment, Justice O’Connor 
recognized that Ms. Hopkins had provided “direct 
evidence of discriminatory animus,” by proving that 
Price Waterhouse ‘“permitted stereotypical attitudes 
towards women’” to play a significant role in denying 
her a promotion. Id. at 271-72 (quoting Court of 
Appeals’ decision). Because Ms. Hopkins had proven 
that sex-based stereotypes were a substantial factor 
in the denial of her promotion, the burden was on 
Price Waterhouse to show that it would have made 
the same decision even absent those stereotypes. See 
id. at 261, 272-73. Justice White, in a separate



20

opinion concurring in the judgment, agreed that Ms. 
Hopkins’s evidence supported the district court’s 
finding that an “unlawful motive was a substantial 
factor” in the denial of a promotion, such that the 
burden shifted to Price Waterhouse to show ‘“that it 
would have reached the same decision in the absence 
o f the unlawful motive.”12 Id. at 259-60 (citation, 
emphasis, and alteration omitted).

The dissent in Price Waterhouse also recognized 
that employment decisions based on sex-based 
stereotypes are forbidden by Title VII. Justice 
Kennedy, joined by Chief Justice Rehnquist and 
Justice Scalia, explained that Ms. Hopkins had 
“presented a strong case . . .  of the presence of 
discrimination in Price Waterhouse’s partnership 
process,” such that the “decision was for the finder of 
fact,” as to whether or not “sex discrimination caused 
the adverse decision.” Id. at 295. In the dissent’s 
view, however, the district court’s findings showed 
that Ms. Hopkins was ultimately denied promotion * VII,

12 In the Civil Rights Act of 1991, Congress abrogated the aspect 
of Price Waterhouse’s holding related to the burden of proof in 
mixed motive cases. The 1991 Act added Section 703(m) to Title
VII, clarifying that if discrimination on the basis of a protected 
category is “a motivating factor” for an employment decision, 
then a violation of Title VII has occurred, regardless of whether 
“other factors also motivated the practice.” Civil Rights Act of 
1991, Pub. L. No. 102-166, § 107(a), 105 Stat. 1071, 1075 (1991) 
(codified as amended at 42 U.S.C. § 2000e-2(m)). The EEOC 
grounded its claims in the instant case in this section as well as 
Section 703(a). Compl. ^7. While there is nothing in the record 
to suggest CMS’s refusal to hire Ms. Jones was based on 
anything other than racial stereotypes about her hair, even if 
there were other considerations, the EEOC’s claim remains valid 
because it has plausibly alleged that a false racial stereotype was 
“a motivating factor” in CMS’s decision. 42 U.S.C. § 2000e-2(m).



21

for reasons other than Price Waterhouse’s sex- 
stereotyped discrimination. See id. In other words, 
the dissent recognized that Title VII forbids 
stereotyped-based discrimination related to mutable 
characteristics. It simply concluded that Ms. Hopkins 
was not entitled to relief under Title VII because the 
district court (after a trial) had found that she was 
denied a promotion for reasons other than 
stereotyped-based discrimination. See id.

In sum, as Judge Martin explained in dissenting 
from the denial of rehearing below, “ [t]he lesson of 
Price Waterhouse is clear. An employment decision 
based on a stereotype associated with the employee’s 
protected class may be disparate treatment under 
Title VII even when the stereotyped trait is not an 
‘immutable’ biological characteristic of the employee.” 
App. 67a. Here, the well-pleaded allegations in the 
EEOC’s Amended Complaint show that CMS made an 
“employment decision based on a stereotype 
associated with [Ms. Jones’s] protected class,” and 
therefore the Amended Complaint states a claim for 
disparate treatment even though “the stereotyped 
trait is not an ‘immutable’” characteristic. Id.

In reaching a contrary conclusion, the Eleventh 
Circuit panel did not cite Price Waterhouse, nor did it 
attempt to explain how its reasoning was consistent 
with this Court’s precedent holding that Title VII 
prohibits stereotyped-based discrimination. Indeed, 
although the panel acknowledged that the EEOC had 
argued that “targeting dreadlocks as a basis for 
employment can be a form of racial stereotyping,” 
App. 8a-9a, it did not address that argument.

Judge Jordan did address Price Waterhouse in his 
opinion concurring in the denial of en banc rehearing,



22

which no other judge joined. However, his analysis 
only underscores the inconsistency between the 
panel’s opinion and this Court’s precedent. In his 
concurring opinion, Judge Jordan stated that Price 
Waterhouse “did not hold that Title VII protects 
mutable characteristics.” App. 51a (Jordan, J., 
concurring). But the issue is not whether Title VII 
protects mutable characteristics, it is whether Title 
VII’s prohibition on stereotyped-based discrimination 
includes stereotypes related to mutable 
characteristics. And, as Judge Jordan recognized, 
Price Waterhouse makes clear that Title VII does 
prohibit such discrimination because the stereotype 
connects the mutable trait to the protected category:

[Wjhen an employer makes a decision 
based on a mutable characteristic 
(demeanor) that is linked by stereotype 
(how women should behave) to one of 
Title VII’s protected categories (a 
person’s sex), the decision may be 
impermissibly based on a protected 
category, so the attack on the mutable 
characteristic is legally relevant to the 
disparate-treatment claim.

App. 52a.
That is as true here as it was in Price Waterhouse. 

CMS made a “decision based on a mutable 
characteristic” (natural hair Iocs) “that is linked by 
stereotype” (that Black natural hairstyles are 
unprofessional or tend to get messy) “to one of Title 
VII’s protected categories” (race). Id.

The issue here is not whether Iocs are immutable, 
just as the issue in Price Waterhouse was not whether 
Ms. Hopkins hairstyle, dress, or comportment were



23

immutable. As Judge Martin explained, “Price 
Waterhouse teaches that, for purposes of Title VII, it 
does not matter whether the trait the employer 
disfavors is mutable or immutable. What matters is 
whether that trait is linked, by stereotype, to a 
protected category.” App. 77a. (Martin, J., 
dissenting). Regardless of their mutability, Iocs are 
“linked, by stereotype, to [the] protected category” of 
race, id., which means that the Amended Complaint 
states a plausible claim for race discrimination.

The Eleventh Circuit’s contrary focus led it astray 
from the proper role of a federal court in applying 
Title VII. The panel sought to distinguish between 
discrimination targeting Black employees with afro 
hairstyles (protected under Title VII) and those with 
Iocs (supposedly unprotected under Title VII). App. 
22a-23a. In defending that distinction, Judge Jordan 
asserted that an afro style is protected because— 
although not immutable in the sense that it cannot be 
altered—it is a Black person’s hair in its “natural 
state.” App. 55a. By contrast, he concluded that Iocs 
are unprotected because they are not “a black 
individual’s hair in its natural, unmediated state.” 
Id. But, Judge Jordan’s distinction fails on its own 
terms. The EEOC’s complaint specifically alleges 
that, just like an afro, Iocs are a “natural style,” as 
they “are formed in a Black person’s hair naturally, 
without any manipulation, or by the manual 
manipulation of hair into larger coils of hair.” Am. 
Compl.  ̂ 19. Furthermore, an afro is not a purely 
unmediated hairstyle but requires care and attention 
to develop and maintain the style, including routine 
detangling, moisturizing, and at times, the use of



24

braids during a growing-out phase.13 The distinction 
between such “mediation” and that required for Iocs 
is arbitrary.

More important, Title VII does not authorize 
federal courts to inquire into how “natural” a Black 
person’s hairstyle is, how much “mediation” is 
required as part of that style, or the degree to which 
a trait can be “masked” versus “alter [ed]” in 
determining whether a complaint should proceed. 
App. 55a. As Judge Martin explained, “ [sjurely, the 
viability of Title VII cannot rest on judges drawing 
distinctions between Afros and dreadlocks.” App. 
85a. Both are presentations of Black natural hair. 
The panel’s contrary “opinion requires courts and 
litigants to engage in a pseudo-scientific analysis of 
which racial traits occur naturally and which do not. 
This is not how we should be deciding claims of race 
discrimination.” Id.

Finally, Judge Jordan stated that “ [tjhere is even 
disagreement over whether dreadlocks are 
exclusively (or even primarily) of African descent,” 
citing a source for the proposition that the first 
written evidence of dreadlocks is in the Vedic 
scriptures, which are of Indian origin. App. 59a. 
(Jordan, J., concurring). But, for the reasons 
explained above, the issue in this case is not whether 
Iocs are exclusively or originally traits of Black 
people. The issue is whether, in denying Ms. Jones

13 See generally Funmi Fetto, How to Guide: Tips for Caring for 
Afro Hair, GLAMOUR (June 15, 2016),
http://www.glamourmagazine.co.uk/article/how-to-care-for-afro- 
hair; John-John Williams IV, Afros, Dreads, Natural Styles More 
Popular, Still Controversial, BALT. SUN (Mar. 4, 2015), 
http://www.baltimoresun.com/features/fashion-style/bs-lt- 
natural-hair- 20150304- story .html.

http://www.glamourmagazine.co.uk/article/how-to-care-for-afro-hair
http://www.glamourmagazine.co.uk/article/how-to-care-for-afro-hair
http://www.baltimoresun.com/features/fashion-style/bs-lt-natural-hair-
http://www.baltimoresun.com/features/fashion-style/bs-lt-natural-hair-


25

employment, CMS relied on a stereotype associated 
with Ms. Jones’s race. This Court “need not leave . . . 
common sense at the doorstep” in applying Title VII. 
Price Waterhouse, 490 U.S. at 241 (plurality opinion). 
In this country and most others, Iocs are principally 
associated with people of African descent, as is the 
false stereotype that Iocs are or tend to get messy. As 
the Amended Complaint “clearly alleged, . . . 
dreadlocks are a stereotyped trait of African 
Americans,” and the “perception that dreadlocks are 
‘unprofessional’ and ‘not neat’ is grounded in a deep- 
seated white cultural association between black hair 
and dirtiness,” which “has origins in slavery.” App. 
78a (Martin, J., dissenting) (citing amended 
complaint). At the motion to dismiss stage, those 
allegations raised a reasonable inference that the 
stereotype CMS relied on was related to Ms. Jones’s 
race as an African-American woman. Ashcroft u. 
Iqbal, 556 U.S. 662, 678 (2009) (recognizing that a 
motion to dismiss should be denied when “the plaintiff 
pleads factual content that allows the court to draw 
the reasonable inference that the defendant is liable 
for the misconduct alleged”).

As such, the EEOC stated a claim for relief under 
Title VII.

For all the foregoing reasons, the Eleventh 
Circuit’s decision in this case conflicts with the 
relevant decisions of this Court on a question of 
federal law. Sup. Ct. R. 10(c). And that question is 
an important one. It goes to the heart of the ability of 
Black women to compete in the workplace, free from 
stereotypes about whether their natural hair conflicts 
with a presentation of professionalism. As this Court 
has stressed in a Title VII case, ‘“ [t]he prohibitions 
against discrimination contained in the Civil Rights



26

Act of 1964 reflect an important national policy.’” St. 
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993) 
(quoting U.S. Postal Seru. Bd. of Governors v. Aikens, 
460 U.S. 711, 716 (1983)). “In passing Title VII, 
Congress made the simple but momentous 
announcement that sex, race, religion, and national 
origin are not relevant to the selection, evaluation, or 
compensation of employees.” Price Waterhouse, 490 
U.S. at 239 (plurality opinion). By prohibiting racial 
discrimination in employment, the statute is designed 
to ensure that individuals have equal opportunities to 
obtain economic security and mobility regardless of 
race.

Here, the Eleventh Circuit misinterpreted Title 
VII as having no application to stereotype-based 
discrimination if the stereotyped trait is not 
immutable. “And it does so in very broad terms.” 
App. 70a (Martin, J., dissenting). This case involves 
a hairstyle, but there is no basis for limiting the 
panel’s holding that stereotype-based discrimination 
is not actionable unless the stereotype relates to an 
immutable characteristic. As a result, the “panel 
opinion forces courts in Alabama, Florida, and 
Georgia to close their eyes to compelling evidence of 
discriminatory intent.” App. 76a. This is also not the 
first time the Eleventh Circuit has denied relief in a 
Title VII case by imposing a categorial rule that has 
no basis in this Court’s precedent. See Ash v. Tyson 
Foods, Inc., 546 U.S. 454, 456 (2006) (per curiam) 
(summarily vacating Eleventh Circuit decision that a 
manager’s calling Black employees “boy” was 
categorically not probative of racial discrimination 
under Title VII).



27

Petitioner respectfully urges this Court to grant 
certiorari to address the direct inconsistency between 
the decision below and this Court’s precedent.

II. The Decision Below Conflicts with 
Decisions of Other Federal Circuits 
Concerning Title VIPs Prohibition on 
Stereotype-Based Discrimination.

As set forth supra, this Court’s precedent is clear 
that Title VII reaches stereotype-based 
discrimination. Thus, it is unsurprising that the 
Eleventh Circuit is alone in holding that Title VII 
categorically does not apply to discrimination related 
to traits that are “mutable,” even when the 
discrimination is rooted in stereotypes related to a 
protected category. Appellate courts in the First, 
Second, Third, Fifth, Sixth, Seventh, and Eighth 
Circuits, have each followed this Court’s precedent 
and recognized that Title VII prohibits employment 
practices that are based on stereotypes related to 
mutable characteristics. Additionally, the First 
Circuit has explicitly recognized that this Court’s 
holding in Price Waterhouse regarding gender-based 
stereotypes necessarily extends to racial stereotypes 
and, directly on point here, the Seventh Circuit has 
held Title VII prohibits an employer from taking 
adverse action against a Black woman because, like 
Ms. Jones, she had a natural hairstyle. The Eleventh 
Circuit’s holding that Title VII cannot apply to 
discrimination related to a “mutable” characteristic, 
even if an adverse employment decision is based on a 
racial stereotype related to that characteristic, 
conflicts with the decisions of multiple other appellate 
courts and creates a circuit split on this important 
issue. Sup. Ct. R. 10(a).



28

A. The Majority of Circuits Follow Price  
W aterhouse Without Applying an 
Immutability Test.

Multiple circuits have followed this Court’s 
reasoning in Price Waterhouse and held that 
discrimination based on stereotype is fully within 
Title VII’s purview. In Chadwick v. WellPoint, Inc., 
561 F.3d 38 (1st Cir. 2009), for example, the court of 
appeals held that the non-promotion of a woman with 
children was actionable because it was based on the 
gender-based stereotype that mothers, particularly 
those with young children, neglect their work duties 
due to childcare obligations. Id. at 42, 45-48. “Given 
what we know about societal stereotypes regarding 
working women with children,” the First Circuit 
rejected the district court’s conclusion that there was 
no evidence this stereotype was based on sex rather 
than a gender-neutral assumption about parents with 
children. Id. at 46-47.

In Back v. Hastings On Hudson Union Free Sch. 
Dist., 365 F.3d 107 (2d Cir. 2004), the Second Circuit 
reversed the district court’s entry of summary 
judgment to an employer under Title VII, holding that 
“stereotyped remarks can certainly be evidence that 
gender played a part in an adverse employment 
decision.” Id. at 119 (quotation marks and citation 
omitted). More recently, the Second Circuit again 
relied on settled law that Title VII reaches 
employment discrimination based on stereotypes 
when it held in Zarda v. Altitude Express, Inc., 883 
F.3d 100 (2d Cir. 2018) (en banc), that discrimination 
on the basis of sexual orientation is actionable in part 
because it is discrimination based on non-conformity 
with gender norms. See id. at 121 (“The gender 
stereotype at work here is that ‘real’ men should date



29

women, and not other men.”) (citation and quotation 
marks omitted).

Moreover, other circuits have applied this 
principle when (as in Price Waterhouse itself), the 
stereotype at issue concerned mutable aspects of a 
person’s appearance. In Bibby v. Phila. Coca Cola 
Bottling Co., 260 F.3d 257 (3d Cir. 2001), the Third 
Circuit recognized a Title VII claim where the male 
plaintiff had been a target of harassment from his co­
workers based on the stereotype that his wearing an 
earring was “not sufficiently masculine.” Id. at 264. 
Similarly, in Lewis v. Heartland Inns of Am., LLC, 
591 F.3d 1033, 1042 (8th Cir. 2010), the Eighth 
Circuit ruled that a terminated female employee who 
dressed in a “tomboyish” manner with short hair and 
no makeup had an actionable claim for discrimination 
based on gender stereotypes in light of her 
supervisor’s stated preference for “pretty” staff 
members with the “Midwestern girl look.” Id. at 1041.

Indeed, other than the decision below, the courts 
of appeals have consistently recognized that 
stereotyped-based discrimination violates Title VII. 
In EEOC v. Boh Bros. Const. Co., 731 F.3d 444 (5th 
Cir. 2013) (en banc), the Fifth Circuit relied on Price 
Waterhouse to hold that sexual harassment based on 
gender stereotyping violates Title VII. The Court of 
Appeals also cited numerous other cases expressly 
recognizing stereotype-based claims under Title VII 
in the gender discrimination context. Id. at 454 & n.4 
(citing Glenn v. Brumby, 663 F.3d 1312, 1316 (11th 
Cir. 2011); Lewis, 591 F.3d at 1038; Chadwick, 561 
F.3d at 44; Smith v. City of Salem, 378 F.3d 566, 573 
(6th Cir. 2004); Back, 365 F.3d at 120; Nichols v. 
Azteca Rest. Enters., 256 F.3d 864, 874-75 (9th Cir.



30

2001); Bibby, 260 F.3d at 263-64 (3d Cir. 2001); and 
Doe v. City of Belleville, 119 F.3d 563, 580 (7th Cir. 
1997), vacated on other grounds, 523 U.S. 1001 
(1998)).

None of these cases undertook an analysis of 
whether the characteristics to which the stereotype 
relates were mutable or immutable. Pregnancy and 
parenthood, for example, cannot be said to be 
immutable, nor can conformance with gender norms 
regarding dress, makeup, or deportment. The claims 
endorsed by multiple circuits would not have 
withstood the immutability test created by the court 
below.

B. Other Circuits Have Specifically Held 
that Title VII Prohibits Adverse 
Employment Actions Based on Racial 
Stereotypes.

Although the majority of the jurisprudence 
related to stereotype-based discrimination under 
Title VII has been in the context of sex discrimination, 
those principles are fully applicable in the context of 
racial discrimination. In Thomas v. Eastman Kodak 
Co., 183 F.3d 38 (1st Cir. 1999), the First Circuit 
reversed a grant of summary judgment to the 
employer and recognized a Title VII claim on the basis 
of racial stereotypes. In direct contradiction to the 
Eleventh Circuit’s decision in the instant case, the 
First Circuit explained that “Title VII’s prohibition 
against ‘disparate treatment because of race’ extends 
both to employer acts based on conscious racial 
animus and to employer decisions that are based on 
stereotyped thinking or other forms of less conscious 
bias.” Id. at 42. The court held that “ [t]he ultimate 
question is whether the employee has been treated



31

disparately ‘because of race.’ This is so regardless of 
whether the employer consciously intended to base 
[employment practices] on race, or simply did so 
because of unthinking stereotypes or bias.” Id. at 58.

The Seventh Circuit’s decision in Jenkins v. Blue 
Cross Mut. Hosp. Ins., 538 F.2d 164 (7th Cir. 1976) 
(en banc), is particularly instructive. In Jenkins, as 
here, the alleged discrimination was based on a 
stereotype that a natural Black hairstyle was 
inappropriate. Id. at 165. Although Jenkins predated 
Price Waterhouse, the Seventh Circuit’s analysis was 
fully consistent with this Court’s subsequent decision 
in that case. The Seventh Circuit did not attempt to 
classify the plaintiff s hairstyle as either a mutable or 
immutable characteristic, but reasoned:

[The plaintiff] said that her supervisor 
denied her a promotion because she 
“could never represent Blue Cross with 
[her] Afro.” A lay person’s description of 
racial discrimination could hardly be 
more explicit. The reference to the Afro 
hairstyle was merely the method by 
which the plaintiff s supervisor allegedly 
expressed the employer’s racial 
discrimination.

Id. at 168.
The Eleventh Circuit sought to reconcile the 

decision below with Jenkins by attempting to 
distinguish between afros and Iocs, but that 
distinction is untenable. Afros and Iocs are both 
Black natural hairstyles, but neither is immutable in 
the sense that it cannot be changed. See supra at 23- 
24. In Jenkins, the court held that discrimination on 
the basis of racialized stereotypes concerning Black



32

natural hairstyles violates Title VII. By contrast, the 
court below held the opposite, thereby dismissing Ms. 
Jones’s allegations that the discrimination she 
suffered was actionable because it was rooted in racial 
stereotyping.

Two other circuit decisions have similarly 
recognized the significance of discrimination based on 
racial stereotypes under Title VII. In Smith u. Wilson, 
705 F.3d 674 (7th Cir. 2013), the Seventh Circuit 
upheld a jury verdict against a plaintiff in a Title VII 
racial discrimination case on other grounds; however, 
citing Price Waterhouse, the Court of Appeals 
emphasized that “ [w]e are mindful that certain 
ostensibly neutral bases for a hiring decision may be 
predicated on impermissible stereotypes and biases.” 
Id. at 678. In Satz v. ITT Fin. Corp., 619 F.2d 738 
(8th Cir. 1980), the Eighth Circuit—prior to Price 
Waterhouse—observed that courts analyzing Title VII 
disparate treatment claims often consider the 
“potential for stereotyping of employees on the basis 
of their sex or race.” Id. at 746.

In the instant case, the Eleventh Circuit failed to 
recognize the significance of such stereotypes. 
Instead, it relied on a rigid dichotomy—which finds 
no support in the text of Title VII, this Court’s 
precedent, or the decisions of other courts of appeal— 
that purports to distinguish between characteristics 
that are “mutable” and “immutable.” Such a 
distinction ignores both common sense and the clear 
precedent of this Court—followed by every other 
appellate court that has considered the question— 
that discrimination based on stereotype is actionable 
under Title VII regardless of whether it is connected 
to a purportedly immutable characteristic.



33

CONCLUSION
For the foregoing reasons, Chastity Jones 

respectfully requests that this petition for writ of 
certiorari be granted.

Respectfully Submitted,

Sherrilyn A. Ifill 
Director-Counsel 

Janai S. Nelson 
Samuel Spital*
Jin Hee Lee 
Rachel M. Kleinman 
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector Street,
5th Floor
New York, NY 10006 
(212) 965-2200 
sspital@naacpldf.org

April 4, 2018

Jennifer A. Holmes 
Daniel S. Harawa 
NAACP Legal Defense & 

Educational Fund, Inc. 
1444 I Street, NW 
10th Floor
Washington, DC 20005

Counsel for Petitioner 
Chastity Jones

* Counsel of Record

mailto:sspital@naacpldf.org


APPENDIX



la

APPENDIX A

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

No. 14-13482

D.C. Docket No. l:13-cv-00476-CB-M

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION,

Plaintiff-Appellant,
versus

CATASTROPHE MANAGEMENT SOLUTIONS,
Defendant-Appellee.

Appeal from the United States District Court 
for the Southern District of Alabama

(December 13, 2016)

Before JORDAN and JULIE CARNES, Circuit Judges, 
and ROBRENO, ‘District Judge.

JORDAN, Circuit Judge:
We withdraw our previous opinion, dated 

September 15, 2016, and published at 837 F.3d 1156, 
and issue this revised opinion:

The Honorable Eduardo Robreno, United States District 
Judge for the Eastern District of Pennsylvania, sitting by 
designation.



2a

The Equal Employment Opportunity Commission 
filed suit on behalf of Chastity Jones, a black job 
applicant whose offer of employment was rescinded by 
Catastrophe Management Solutions pursuant to its 
race-neutral grooming policy when she refused to cut 
off her dreadlocks. The EEOC alleged that CMS’ 
conduct constituted discrimination on the basis of Ms. 
Jones’ race in violation of Title VII of the Civil Rights 
Act of 1964, 42 U.S.C. §§ 2000e-2(a)(l) & 2000e-2(m). 
The district court dismissed the complaint under 
Federal Rule of Civil Procedure 12(b)(6) because it did 
not plausibly allege intentional racial discrimination 
by CMS against Ms. Jones. See E.E.O.C. v. 
Catastrophe Mgmt. Solutions, 11 F. Supp. 3d 1139, 
1142-44 (S.D. Ala. 2014). The district court also 
denied the EEOC’s motion for leave to amend, 
concluding that the proposed amended complaint 
would be futile. The EEOC appealed.

With the benefit of oral argument, we affirm. First, 
the EEOC—in its proposed amended complaint and in 
its briefs—conflates the distinct Title VII theories of 
disparate treatment (the sole theory on which it is 
proceeding) and disparate impact (the theory it has 
expressly disclaimed). Second, our precedent holds 
that Title VII prohibits discrimination based on 
immutable traits, and the proposed amended 
complaint does not assert that dreadlocks—though 
culturally associated with race—are an immutable 
characteristic of black persons. Third, we are not 
persuaded by the guidance in the EEOC’s Compliance 
Manual because it conflicts with the position taken by 
the EEOC in an earlier administrative appeal, and 
because the EEOC has not persuasively explained why 
it changed course. Fourth, no court has accepted the



3a

EEOC’s view of Title VII in a scenario like this one, 
and the allegations in the proposed amended 
complaint do not set out a plausible claim that CMS 
intentionally discriminated against Ms. Jones on the 
basis of her race.

I

The EEOC relies on the allegations in its proposed 
amended complaint, see Br. of EEOC at 2-6, so we set 
out those allegations below.

A

CMS, a claims processing company located in 
Mobile, Alabama, provides customer service support to 
insurance companies. In 2010, CMS announced that it 
was seeking candidates with basic computer 
knowledge and professional phone skills to work as 
customer service representatives. CMS’ customer 
representatives do not have contact with the public, as 
they handle telephone calls in a large call room.

Ms. Jones, who is black, completed an online 
employment application for the customer service 
position in May of 2010, and was selected for an in- 
person interview. She arrived at CMS for her 
interview several days later dressed in a blue business 
suit and wearing her hair in short dreadlocks.

After waiting with a number of other applicants, 
Ms. Jones interviewed with a company representative 
to discuss the requirements of the position. A short 
time later, Ms. Jones and other selected applicants 
were brought into a room as a group.

CMS’ human resources manager, Jeannie 
Wilson—who is white—informed the applicants in the



4a

room, including Ms. Jones, that they had been hired. 
Ms. Wilson also told the successful applicants that 
they would have to complete scheduled lab tests and 
other paperwork before beginning their employment, 
and she offered to meet privately with anyone who had 
a conflict with CMS’ schedule. As of this time no one 
had commented on Ms. Jones’ hair.

Following the meeting, Ms. Jones met with Ms. 
Wilson privately to discuss a scheduling conflict she 
had and to request to change her lab test date. Ms. 
Wilson told Ms. Jones that she could return at a 
different time for the lab test.

Before Ms. Jones got up to leave, Ms. Wilson asked 
her whether she had her hair in dreadlocks. Ms. Jones 
said yes, and Ms. Wilson replied that CMS could not 
hire her “with the dreadlocks.” When Ms. Jones asked 
what the problem was, Ms. Wilson said “they tend to 
get messy, although I’m not saying yours are, but you 
know what I’m talking about.” Ms. Wilson told Ms. 
Jones about a male applicant who was asked to cut off 
his dreadlocks in order to obtain a job with CMS.

When Ms. Jones said that she would not cut her 
hair, Ms. Wilson told her that CMS could not hire her, 
and asked her to return the paperwork she had been 
given. Ms. Jones did as requested and left.

At the time, CMS had a race-neutral grooming 
policy which read as follows: “All personnel are 
expected to be dressed and groomed in a manner that 
projects a professional and businesslike image while 
adhering to company and industry standards and/or 
guidelines . . . .  [Hjairstyle should reflect a



5a

business/professional image. No excessive hairstyles 
or unusual colors are acceptable[.]”

B

Dreadlocks, according to the proposed amended 
complaint, are “a manner of wearing hair that is 
common for black people and suitable for black hair 
texture. Dreadlocks are formed in a black person’s hair 
naturally, without any manipulation, or by manual 
manipulation of hair into larger coils.”

The EEOC alleged that the term dreadlock 
originated during the slave trade in the early history 
of the United States. “During the forced transportation 
of Africans across the ocean, their hair became matted 
with blood, feces, urine, sweat, tears, and dirt. Upon 
observing them, some slave traders referred to the 
slaves’ hair as ‘dreadful,’” and dreadlock became a 
“commonly used word to refer to the locks that had 
formed during the slaves’ long trips across the ocean.”

C

The proposed amended complaint also contained 
some legal conclusions about the concept of race. First, 
the EEOC stated that race “is a social construct and 
has no biological definition.” Second, the EEOC 
asserted that “the concept of race is not limited to or 
defined by immutable physical characteristics.” Third, 
according to the EEOC Compliance Manual, the 
concept of race encompasses cultural characteristics 

related to race or ethnicity,” including “grooming 
practices.” Fourth, although some non-black persons 
have a hair texture that would allow the hair to lock, 

dreadlocks are nonetheless a racial characteristic, just 
as skin color is a racial characteristic.”



6a

Playing off these legal conclusions, the proposed 
amended complaint set out allegations about black 
persons and their hair. The hair of black persons grows 
“in very tight coarse coils,” which is different than the 
hair of white persons. “Historically, the texture of hair 
has been used as a substantial determiner of race,” 
and “dreadlocks are a method of hair styling suitable 
for the texture of black hair and [are] culturally 
associated” with black persons. When black persons 
“choose to wear and display their hair in its natural 
texture in the workplace, rather than straightening it 
or hiding it, they are often stereotyped as not being 
‘teamplayers,’ ‘radicals,’ ‘troublemakers,’ or not 
sufficiently assimilated into the corporate and 
professional world of employment.” Significantly, 
the proposed amended complaint did not allege that 
dreadlocks are an immutable characteristic of black 
persons.

II

Our review in this appeal is plenary. Like the 
district court, we accept as true the well-pleaded 
factual allegations in the proposed amended complaint 
and draw all reasonable inferences in the EEOC’s 
favor. See, e.g., Ellis v. Cartoon Network, Inc., 803 F.3d 
1251, 1255 (11th Cir. 2015) (dismissal of a complaint 
for failure to state a claim); St. Charles Foods, Inc. u. 
America’s Favorite Chicken Co., 198 F.3d 815, 822 
(11th Cir. 1999) (denial of a motion for leave to amend 
due to futility). The legal conclusions in the proposed 
amended complaint, however, are not presumed to be 
true. See Ashcroft v. Iqbal, 556 U.S. 662, 679—81 
(2009); Franklin v. Curry, 738 F.3d 1246, 1248 n.l 
(11th Cir. 2013).



7a

A complaint must contain sufficient factual 
allegations to “state a claim to relief that is plausible 
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 
570 (2007). In a Title VII case like this one, the EEOC 
had to set out enough “factual content t[o] allow [ ] [a] 
court to draw the reasonable inference” that CMS is 
liable for the intentional racial discrimination alleged. 
See Iqbal, 556 U.S. at 678-79 (explaining that the 
“plausibility standard” requires more than a “mere 
possibility” but is “not akin to a ‘probability 
requirement’”).

I ll1

The EEOC claimed in its proposed amended 
complaint that a “prohibition of dreadlocks in the 
workplace constitutes race discrimination because 
dreadlocks are a manner of wearing the hair that is 
physiologically and culturally associated with people 1

1 We conclude that the notice of appeal was timely because 
the EEOC’s motion for leave to amend—which in part challenged 
the basis for the district court’s dismissal of the original 
complaint—is properly treated as a Rule 59(e) motion which tolled 
the time for appeal. See Giuffre v. Deutsche Bank Nat. Trust Co., 
759 F.3d 134, 137 (1st Cir. 2014) (holding that a plaintiffs post­
judgment motion for leave to file an amended complaint tolled the 
time to appeal because “[i]n substance, [the] motion challenged 
the legal foundation of the dismissal order and called on the judge 
to either revoke that order or alter it to allow him leave to 
amend”); Trotter v. Regents of Univ. ofN.M., 219 F.3d 1179, 1183 
(10th Cir. 2000) (holding that a Rule 15 motion filed within the 
time limit for filing a Rule 59(e) motion tolls the time for filing a 
notice of appeal); Bodin v. Gulf Oil Corp., 877 F.2d 438, 440 (5th 
Cir. 1989) (holding that a motion for leave to amend constituted 
a timely Rule 59(e) motion, and thus, the time for filing a notice 
of appeal commenced when the district court denied the motion).



8a

of African descent.” So, according to the EEOC, the 
decision of CMS to “interpret its race-neutral written 
grooming policy to ban the wearing of dreadlocks 
constitutes an employment practice that discriminates 
on the basis of race.”

The district court dismissed the initial complaint, 
and concluded that the proposed amended complaint 
was futile, because “Title VII prohibits discrimination 
on the basis of immutable characteristics, such as race, 
color, or natural origin,” and “ [a] hairstyle, even one 
more closely associated with a particular ethnic group, 
is a mutable characteristic.” Catastrophe Mgmt., 11 F. 
Supp. 3d at 1143 (order granting motion to dismiss). 
The district court was not swayed by the EEOC’s 
contention that the allegations were sufficient because 
“hairstyle can be a determinant of racial identity,” 
explaining that other courts had rejected that 
argument. See id. The district court also declined the 
EEOC’s invitation to discard the immutable/mutable 
distinction for Title VII race discrimination claims. See 
id. See also D.E. 27 at 1-2 (order denying leave to 
amend because the EEOC had already presented its 
more detailed allegations as legal arguments in 
support of the initial complaint, and those arguments 
had been rejected).

The EEOC advances a number of arguments on 
appeal in support of its position that denying a black 
person employment on the basis of her dreadlocks 
through the application of a race-neutral grooming 
policy constitutes intentional discrimination on the 
basis of race in violation of Title VII. The arguments, 
which build on each other, are that dreadlocks are a 
natural outgrowth of the immutable trait of black hair



9a

texture; that the dreadlocks hairstyle is directly 
associated with the immutable trait of race; that 
dreadlocks can be a symbolic expression of racial pride; 
and that targeting dreadlocks as a basis for 
employment can be a form of racial stereotyping. See 
Br. of EEOC at 14-39.

A

Before we address these arguments, we discuss an 
overarching problem concerning the EEOC’s liability 
theory. Despite some loose language in its proposed 
amended complaint, the EEOC confirmed at oral 
argument that it is proceeding only on a disparate 
treatment theory under 42 U.S.C. § 2000e-2(a)(l) 
(making it “unlawful [for a covered employer] to fail or 
refuse to hire or to discharge any individual . . . 
because of such individual’s race, color, religion, sex or 
national origin”), and is not pursuing a disparate 
impact theory under 42 U.S.C. 2000e-2(k)(l) 
(permitting disparate impact claims for unlawful 
employment practices and setting out applicable 
burdens of proof).

This matters because the two theories are not 
interchangeable, and “courts must be careful to 
distinguish between the[m.]” Raytheon Co. v. 
Hernandez, 540 U.S. 44, 53 (2003). See also E.E.O.C. 
v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1283 (11th 
Cir. 2000) (concluding that allowing plaintiffs who 
alleged disparate treatment to assert a disparate 
impact claim “would unwisely conflate the distinct 
theories of disparate impact and disparate treatment”). 
To prevail on a disparate treatment claim, a Title VII 
plaintiff must demonstrate that an employer 
intentionally discriminated against her on the basis of



10a

a protected characteristic. See Ricci v. DeStefano, 557 
U.S. 557, 577 (2009). In contrast, a disparate impact 
claim does not require proof of discriminatory intent. 
A disparate impact claim targets an employment 
practice that has an actual, though not necessarily 
deliberate, adverse impact on protected groups. See id. 
Given the EEOC’s disparate treatment claim, the 
proposed amended complaint had to contain sufficient 
factual allegations to set out a plausible claim that 
CMS intentionally discriminated against Ms. Jones, 
individually, because of her race.

Despite its decision to assert onty a disparate 
treatment claim, the EEOC at times conflates the two 
liability theories, making disparate impact arguments 
in support of its disparate treatment claim. See Br. of 
Chamber of Commerce of the United States as Amicus 
Curiae at 14-19 (pointing this out). The EEOC, for 
example, faults the district court for not allowing 
expert testimony on the “racial impact of a dreadlock 
ban” and for failing to acknowledge “the critical 
disadvantage at which the dreadlock ban places Black 
applicants.” Br. of EEOC at 7-8, 18 (emphasis added). 
It also asserts that “the people most adversely and 
significantly affected by a dreadlocks ban, such as 
CMS’, are African-Americans.” Id. at 31 (emphasis 
added). And it argues that “a policy which critically 
disadvantages or affects members of one group over 
another” can support an intentional discrimination 
claim. See Reply Br. of EEOC at 16 (emphasis added). 
Because this is a disparate treatment case, and only a 
disparate treatment case, we do not address further 
the EEOC’s arguments that CMS’ race-neutral



11a

grooming policy had (or potentially had) a 
disproportionate effect on other black job applicants.2

B

In its notice of supplemental authority the EEOC 
relies on the Supreme Court’s recent decision in Young 
v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015), a 
case involving 42 U.S.C. § 2000e(k)—a provision of the 
Pregnancy Discrimination Act—to support its use of 
disparate impact arguments in this action. Young, 
however, does not work a dramatic shift in disparate 
treatment jurisprudence.

In Young, the Supreme Court dealt with the 
accommodation requirements of the PDA. Specifically, 
it considered how to implement the statutory mandate 
that employers treat pregnancy-related disabilities 
like nonpregnancy-related disabilities in a situation 
where an employer does not treat all nonpregnancy- 
related disabilities alike. Young held that a pregnant 
employee who seeks to show disparate treatment in 
such a scenario may do so through the application of 
the burden-shifting framework established in 
McDonnell Douglas Corp. v. Green, 411 U.S. 792 
(1973). See Young, 135 S. Ct. at 1353-54. If an 
employer offers apparently legitimate reasons for

2 Statistical evidence, of course, can sometimes be probative 
of intentional discrimination, see, e.g., Int’l Bhd. of Teamsters v. 
United States, 431 U.S. 324, 335-40 & n.20 (1977), but the EEOC 
did not allege, and does not claim, that there is statistical 
evidence showing (or allowing a reasonable inference of) a pattern 
or practice of disparate treatment on the part of CMS. Nor is 
there any claim that CMS applied its grooming policy differently 
to black applicants or employees, as was the case in Hollins v. Atl. 
Co., Inc., 188 F.3d 652, 661 (6th Cir. 1999).



12a

failing to accommodate pregnant employees, the 
plaintiff may assert that the proffered reasons are 
pretextual by providing “sufficient evidence that the 
employer’s policies impose a significant burden on 
pregnant workers, and that the employer’s legitimate, 
nondiscriminatory’ reasons are not sufficiently strong 
to justify the burden, but rather—when considered 
along with the burden imposed— give rise to an 
inference of intentional discrimination.” Id. at 1354. 
For example, a plaintiff may provide evidence that an 
employer accommodates a large percentage of 
nonpregnant workers while failing to accommodate a 
large percentage of pregnant workers. See id. at 
1354-55.

The rationale and holding in Young are based on, 
and therefore limited to, the language in a specific 
provision of the PDA. Young is not, as the EEOC 
suggests, automatically transferable to a disparate 
treatment case under Title VII involving allegations of 
intentional racial discrimination.

Despite the textual differences between the Title 
VII disparate treatment provision at issue here (§ 
2000e-2(a)(l)) and the PDA provision at issue in Young 
(§ 2000e(k)), the EEOC argues that the following 
language from Young supports its use of disparate 
impact concepts in a disparate treatment case:

[Djisparate-treatment law normally permits 
an employer to implement policies that are not 
intended to harm members of a protected 
class, even if their implementation sometimes 
harms those members, as long as the employer 
has a legitimate, nondiscriminatory, 
nonpretextual reason for doing so.



13a

135 S. Ct. at 1350 (internal citations omitted). The 
quoted passage, however, merely explains that 
disparate treatment liability attaches only when an 
employer intentionally harms members of a protected 
group. It summarizes the familiar framework courts 
use to assess disparate treatment claims at summary 
judgment, where direct proof of intentional 
discrimination is unavailable: the McDonnell Douglas 
burden-shifting framework, which places the burden 
on the employer to articulate a legitimate reason for 
taking an adverse employment action once an 
employee establishes a prima facie case.

We do not read the passage from Young in the 
inverse to stand for the proposition that an employer’s 
neutral policy can engender disparate treatment 
liability merely because it has an unintended adverse 
effect on members of a protected group. The crux of the 
disparate treatment inquiry, and the question the 
McDonnell Douglas framework seeks to answer, is 
whether the employer intentionally discriminated 
against particular persons on an impermissible basis, 
not whether there was a disparate impact on a 
protected group as a whole. An allegation of adverse 
consequences, without more, is not sufficient to state 
a claim for disparate treatment. Cf. id. at 1355 (“the 
continued focus on whether the plaintiff has 
introduced sufficient evidence to give rise to an 
inference of intentional discrimination avoids 
confusing the disparate-treatment and disparate- 
impact doctrines”).

IV

The question in a disparate treatment case is 
whether the protected trait actually motivated the



14a

employer’s decision.” Raytheon, 540 U.S. at 52 (ellipses 
and internal quotation marks omitted). Generally 
speaking, “ [a] plaintiff can prove disparate treatment 
. . . by direct evidence that a workplace policy, 
practice, or decision relies expressly on a protected 
characteristic, or . . .  by [circumstantial evidence] 
using the burden-shifting framework set forth in 
McDonnell Douglas.” Young, 135 S. Ct. at 1345. See 
also Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 
768 n.3 (11th Cir. 2005) (explaining that McDonnell 
Douglas “is not the exclusive means” for showing 
intentional discrimination through circumstantial 
evidence).

Title VII does not define the term “race.” And, in 
the more than 50 years since Title VII was enacted, 
the EEOC has not seen fit to issue a regulation 
defining the term. See EEOC Compliance Manual, § 
15-11, at 4 (2006) (“Title VII does not contain a 
definition of ‘race,’ nor has the Commission adopted 
one.”). This appeal requires us to consider, at least in 
part, what “race” encompasses under Title VII because 
the EEOC maintains that “if [ ] individual expression 
is tied to a protected trait, such as race, discrimination 
based on such expression is a violation of the law.” Br. 
of EEOC at 20.

A

“The meaning of the word ‘race’ in Title VII is, like 
any other question of statutory interpretation, a 
question of law for the court.” Village of Freeport v. 
Barrella, 814 F.3d 594, 607 (2d Cir. 2016). When words 
are not defined in a statute, they are “interpreted as 
taking their ordinary, contemporary, common 
meaning,” Sandifer v. U.S. Steel Corp., 134 S. Ct. 870,



15a

876 (2014) (citation and internal quotation marks 
omitted), and one of the ways to figure out that 
meaning is by looking at dictionaries in existence 
around the time of enactment. See, e.g., St. Francis 
College v. Al-Khazraji, 481 U.S. 604, 609-12 (1987) 
(consulting 19th century dictionaries to determine the 
meaning of “race” in a case arising under 42 U.S.C. § 
1981, which became law in 1866).

In the 1960s, as today, “race” was a complex 
concept that defied a single definition. Take, for 
example, the following discussion in a leading 1961 
dictionary: “In technical discriminations, all more or 
less controversial and often lending themselves to 
great popular misunderstanding or misuse, RACE is 
anthropological and ethnological in force, usujallv] 
implying a physical type with certain underlying 
characteristics, as a particular color of skin or shape of 
skull . . . although sometimes, and most
controversially, other presumed factors are chosen, 
such as place of origin . . .  or common root language.” 
WEBSTER’S THIRD NEW INTERNATIONAL 
DICTIONARY OF THE ENGLISH LANGUAGE 1870 
(unabridged 1961).

Nevertheless, most dictionaries at that time tied 
“race” to common physical characteristics or traits 
existing through ancestry, descent, or heredity. See id. 
(defining “race” as “the descendants of a common 
ancestor: a family, tribe, people, or nation belonging to 
the same stock” or “a class or kind of individuals with 
common characteristics, interests, appearance, or 
habits as if derived from a common ancestor,” or “a 
division of mankind possessing traits that are 
transmissible by descent and sufficient to characterize



16a

it as a distinct human type (Caucasian ~) (Mongoloid 
A DICTIONARY OF THE SOCIAL SCIENCES 

569 (Julius Gould & William Kolb eds. 1964) (“A race 
is a subdivision of a species, individual members of 
which display with some frequency a number of 
hereditary attributes that have become associated 
with one another in some measure through 
considerable degree of in-breeding among the 
ancestors of the group during a substantial part of 
their recent evolution.”); A DICTIONARY OF 
SOCIOLOGY 142 (G. Duncan Mitchell ed. 1968) 
(“Biologically speaking the concept of race refers to a 
population sharing a gene-pool giving rise to a 
characteristic distribution of physical characteristics 
determined by heredity. There are no clear cut 
boundaries between racial groups thus defined and 
considerable variations may be exhibited within 
races.”). One specialty dictionary, while defining “race” 
as an “anthropological term denoting a large group of 
persons distinguished by significant hereditary 
physical traits,” cautioned that “ [a] common 
misconception is that cultural traits sufficiently 
differentiate races.” DICTIONARY OF POLITICAL 
SCIENCE 440 (Joseph Dunne ed. 1964).

From the sources we have been able to review, it 
appears more likely than not that “race,” as a matter 
of language and usage, referred to common physical 
characteristics shared by a group of people and 
transmitted by their ancestors over time. Although the 
period dictionaries did not use the word “immutable” 
to describe such common characteristics, it is not much 
of a linguistic stretch to think that such characteristics 
are a matter of birth, and not culture.



17a

There is little support for the position of the EEOC 
that the 1964 Congress meant for Title VII to protect 
“individual expression . .. tied to a protected race.” Br. 
of EEOC at 20. Indeed, from a legal standpoint, it 
appears that “race” was then mostly understood in 
terms of inherited physical characteristics. See 
BLACK’S LAW DICTIONARY 1423 (4th ed. 1951) 
(“Race. An ethnical stock; a great division of mankind 
having in common certain distinguishing physical 
peculiarities constituting a comprehensive class 
appearing to be derived from a distinct primitive 
source. A tribal or national stock, a division or 
subdivision of one of the great racial stocks of mankind 
distinguished by minor peculiarities. Descent.”) (citing 
cases).

It may be that today “race” is recognized as a 
social construct,” Ho by Ho v. San Francisco Unified 

Sch. Dist., 147 F.3d 854, 863 (9th Cir. 1998), rather 
than an absolute biological truth. See also Al-Khazraji, 
481 U.S. at 610 n.4 (noting that some, but not all, 
scientists have concluded that “racial classifications 
are for the most part sociopolitical, rather than 
biological, in nature”); THE AMERICAN HERITAGE 
DICTIONARY OF THE ENGLISH LANGUAGE 1441 
(4th ed. 2009) (usage note for “race”: “The notion of 
race is nearly as problematic from a scientific point of 
view as it is from a social one.”). But our possible 
current reality does not tell us what the country’s 
collective Zeitgeist was when Congress enacted Title 
VII half a century ago. “That race is essentially only a 
very powerful idea and not at all a biological fact is, 
again, an emerging contemporary understanding of the 
meaning of race.” Rhonda V. Magee Andrews, The 
Third Reconstruction: An Alternative to Race



18a

Consciousness and Colorblindness in Post-Slavery 
America, 54 ALA. L. REV. 483, 515 (2003).3

B

If we assume, however, that the quest for the 
ordinary understanding of “race” in the 1960s does not 
have a clear winner, then we must look for answers 
elsewhere. Some cases from the former Fifth Circuit 
provide us with binding guidance, giving some 
credence to Felix Frankfurter’s adage that “[n]o judge 
writes on a wholly clean slate.” Walter Hamilton, 
Preview of a Justice, 48 YALE L.J. 819, 821 (1939) 
(quoting FELIX FRANKFURTER, THE COMMERCE 
CLAUSE UNDER MARSHALL, TANEY, AND WAITE

8 Of note, some contemporary judicial decisions and 
dictionaries still provide understandings of “race” tied to biological 
and physical characteristics. See, e.g., Abdullahi v. Prada USA 
Corp., 520 F.3d 710, 712 (7th Cir. 2008) (Posner, J.) (“A racial 
group as the term is generally used in the United States today is 
a group having a common ancestry and distinct physical traits.”); 
2 SHORTER OXFORD ENGLISH DICTIONARY 2445 (5th ed. 
2002) (defining “race” in part as “a group or set, esp. of people, 
having a common feature or features,” or “a group of living things 
connected by common descent or origin,” or “ [a]ny of the major 
divisions of humankind, having in common distinct physical 
features or ethnic background”). And in the Geneva Convention 
Implementation Act of 1987, legislation that post-dated Title VII 
by about two decades, Congress defined the term “racial group” as 
“a set of individuals whose identity as such is distinctive in terms 
of physical characteristics or biological descent.” 18 U.S.C. § 
1093(6). By citing to this provision, we do not mean to suggest 
that the definition of a term in one statute can be automatically 
used when the same term is undefined in a separate statute. We 
merely point out that in the late 1980s Congress still thought of 
“race,” in at least one context, as including common physical 
characteristics.



19a

12 (1937)). As we explain below, those cases teach that 
Title VII protects against discrimination based on 
immutable characteristics.

In Willingham v. Macon Tel. Publ’g  Co., 507 F.2d 
1084 (5th Cir. 1975) (en banc), we addressed a Title 
VII sex discrimination claim by a male job applicant 
who was denied a position because his hair was too 
long. Although the employer interpreted its neutral 
dress/grooming policy to prohibit the wearing of long 
hair only by men, and although the plaintiff argued 
that he was the victim of sexual stereotyping (i.e., the 
view that only women should have long hair), we 
affirmed the grant of summary judgment in favor of 
the employer. See id. at 1092-93.

We held in Willingham that “ [ejqual employment 
opportunity,” which was the purpose of Title VII, “may 
be secured only when employers are barred from 
discriminating against employees on the basis of 
immutable characteristics, such as race and national 
origin. Similarly, an employer cannot have one hiring 
policy for men and another for women if the distinction 
is based on some fundamental right. But a hiring 
policy that distinguishes on some other ground, such 
as grooming or length of hair, is related more closely to 
the employer’s choice of how to run his business than 
equality of employment opportunity.” Id. at 1091. We 
“adopt [ed] the view . . . that distinctions in 
employment practices between men and women on the 
basis of something other than immutable or protected 
characteristics do not inhibit employment opportunity 
in violation of [Title VII].” Id. at 1092. And we 
approved the district court’s alternative ground for 
affirming the grant of summary judgment in favor of



20a

the employer—that because grooming and hair 
standards were also imposed on female employees, 
men and women were treated equally. See id. In 
closing, we reiterated that “ [p]rivate employers are 
prohibited from using different hiring policies for men 
and women only when the distinctions used relate to 
immutable characteristics or legally protected rights.” 
Id.4

Willingham involved hair length in the context of 
a sex discrimination claim, but in Garcia v. Gloor, 618 
F.2d 264 (5th Cir. 1980), we applied the immutable 
characteristic limitation to national origin, another of 
Title VII’s protected categories. In Garcia a bilingual 
Mexican-American employee who worked as a 
salesperson was fired for speaking Spanish to a co­
worker on the job in violation of his employer’s 
English-only policy, and he alleged that his 
termination was based on his national origin in 
violation of Title VII (which we referred to as the “EEO 
Act”). We affirmed the district court’s judgment in 
favor of the employer following a bench trial. We noted 
that an expert witness called by the employee had 
“testified that the Spanish language is the most 
important aspect of ethnic identification for Mexican- 
Americans, and it is to them what skin color is to 
others,” and that testimony formed part of the basis for 
the claim that the employer’s policy was unlawful. See

4 On several occasions we have reaffirmed the central 
holding of Willingham that Title VII protects against 
discrimination based on immutable characteristics, i.e., those that 
an employee is bom with or cannot change. See, e.g., Harper v. 
Blockbuster Entm’t Corp., 139 F.3d 1385, 1389 (11th Cir. 1998); 
Gilchrist v. Bolger, 733 F.2d 1551, 1553 (11th Cir. 1984).



21a

id. at 267. Although the district court had found that 
there were other reasons for the employee’s dismissal 
we assumed that the use of Spanish was a significant 
factor in the employer’s decision. See id. at 268.

We explained that neither Title VII nor common 
understanding “equates national origin with the 
language that one chooses to speak,” and noted that 
the English-only rule was not applied to the employee 
as a “covert basis for national origin discrimination.” 
Id. Though the employee argued that he was 
discriminated against on the basis of national origin 
“because national origin influences or determines his 
language preference,” we were unpersuaded because 
the employee was bilingual and was allowed to speak 
Spanish during breaks. Id. And even if the employer 
had no genuine business need for the English-only 
policy, we said that “ [njational origin must not be 
confused with ethnic or sociocultural traits or an 
unrelated status, such as citizenship or alienage.” Id. 
at 269. Citing Willingham, we emphasized that Title 
VII “focuses its laser of prohibition” on discriminatory 
acts based on matters “that are either beyond the 
victim’s power to alter, or that impose a burden on an 
employee on one of the prohibited bases.” Id.

The employee in Garcia also argued that the 
employer’s English-only policy was “discriminatory in 
impact, even if that result was not intentional, because 
it was likely to be violated only by Hispanic-Americans 
and that, therefore, they ha[d] a higher risk of 
incurring penalties.” Id. at 270. We rejected this 
argument as well because “there is no disparate 
impact if the rule is one that the affected employee can 
readily observe and nonobservance is a matter of



22a

individual preference,” and Title VII “does not support 
an interpretation that equates the language an 
employee prefers to use with his national origin.” Id.

What we take away from Willingham and Garcia 
is that, as a general matter, Title VII protects persons 
in covered categories with respect to their immutable 
characteristics, but not their cultural practices. See 
Willingham., 507 F.2d at 1092; Garcia, 618 F.2d at 
269. And although these two decisions have been 
criticized by some, see, e.g., Camille Gear Rich, 
Performing Racial and Ethnic Identity: Discrimination 
by Proxy and the Future of Title VII, 79 N.Y.U. L. REV. 
1134, 1213-21 (2004), we are not free, as a later panel, 
to discard the immutable/mutable distinction they set 
out. See Cohen v. Office Depot, Inc., 204 F.3d 1069, 
1076 (11th Cir. 2000) (“ [T]he prior panel precedent 
rule is not dependent upon a subsequent panel’s 
appraisal of the initial decision’s correctness. Nor is 
the application of the rule dependent upon the skill 
of the attorneys or wisdom of the judges involved in 
the prior decision—upon what was argued or 
considered.”).

We recognize that the distinction between 
immutable and mutable characteristics of race can 
sometimes be a fine (and difficult) one, but it is a line 
that courts have drawn. So, for example, 
discrimination on the basis of black hair texture (an 
immutable characteristic) is prohibited by Title VII, 
while adverse action on the basis of black hairstyle (a 
mutable choice) is not. Compare, e.g., Jenkins v. Blue 
Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 168 (7th Cir. 
1976) (en banc) (recognizing a claim for racial 
discrimination based on the plaintiff s allegation that



23a

she was denied a promotion because she wore her hair 
in a natural Afro), with, e.g., Rogers v. Am. Airlines, 
Inc., 527 F. Supp. 229, 232 (S.D.N.Y. 1981) (holding 
that a grooming policy prohibiting an all-braided 
hairstyle did not constitute racial discrimination, and 
distinguishing policies that prohibit Afros, because 
braids are not an immutable characteristic but rather 
“the product of . . . artifice”). As one commentator has 
put it, “the concept of immutability,” though not 
perfect, “provides a rationale for the protected 
categories encompassed within the antidiscrimination 
statutes.” Sharona Hoffman, The Importance of 
Immutability in Employment Discrimination Law, 52 
WM. & MARY L. REV. 1483, 1514 (2011).

Critically, the EEOC’s proposed amended 
complaint did not allege that dreadlocks themselves 
are an immutable characteristic of black persons, and 
in fact stated that black persons choose to wear 
dreadlocks because that hairstyle is historically, 
physiologically, and culturally associated with their 
race. That dreadlocks are a “natural outgrowth” of the 
texture of black hair does not make them an 
immutable characteristic of race. Under Willingham 
and Garcia, the EEOC failed to state a plausible claim 
that CMS intentionally discriminated against Ms. 
Jones on the basis of her race by asking her to cut her 
dreadlocks pursuant to its race-neutral grooming 
policy. The EEOC’s allegations—individually or 

collectively—do not suggest that CMS used that policy 
as proxy for intentional racial discrimination.5

The EEOC did assert that dreadlocks are an immutable 
characteristic of black persons, but it made that assertion (which 
conflicted with what the proposed amended complaint alleged)



24a

C

The EEOC admitted in its proposed amended 
complaint that CMS’ grooming policy is race-neutral, 
but claimed that a “prohibition on dreadlocks in the 
workplace constitutes race discrimination” because 
dreadlocks are a racial characteristic, i.e., they “are a 
manner of wearing the hair that is physiologically and 
culturally associated with people of African descent.” 
So, as noted earlier, the claim that CMS intentionally 
discriminated against Ms. Jones on the basis of her 
race depends on the EEOC’s conception of what “race” 
means (and how far it extends) under Title VIE See Br. 
of EEOC at 20 (“In the Title VII context, if the 
individual expression is tied to a protected race, 
discrimination based on such expression is a violation 
of the law.”).

In support of its interpretation of Title VII, the 
EEOC relies on its own Compliance Manual. See 
EEOC Compliance Manual, § 15-11, at 4 (2006) (“Title 
VII prohibits employment discrimination against a 
person because of cultural characteristics often linked 
to race or ethnicity, such as a person’s name, cultural 
dress and grooming practices, or accent or manner of 
speech.”). But even if we could ignore Willingham and 
Garcia, the Compliance Manual does, not save the day 
for the EEOC.

only in its motion for leave to amend. See D .E .21atl.W edo not 
consider this assertion, for facts contained in a motion or brief 
“cannot substitute for missing allegations in the complaint.” 
Kedzierski v. Kedzierski, 899 F.2d 681, 684 (7th Cir. 1990). Accord 
Associated Press v. All Headline News Corp., 608 F. Supp. 2d 454, 
464 (S.D.N.Y. 2009) (“Conclusory assertions in a memorandum of 
law are not a substitute for plausible allegations in a complaint.”).



25a

“[T]he rulings, interpretations, and opinions” of an 
agency charged with enforcing a particular statute, 
“while not controlling upon the courts by reason of 
their authority, do constitute a body of experience and 
informed judgment to which courts and litigants may 
properly resort for guidance.” Skidmore v. Swift & Co., 
323 U.S. 134, 140 (1944). The Compliance Manual, 
therefore, is entitled to deference “only to the extent 
that [it has] the power to persuade.” Christensen v. 
Harris Cty., 529 U.S. 576, 587 (2000) (citation and 
internal quotation marks omitted). Factors relevant to 
determining the persuasiveness of the Compliance 
Manual, and thus the weight given to the EEOC’s 
guidance, include “the thoroughness evident in its 
consideration, the validity of its reasoning, [and] its 
consistency with earlier and later pronouncements[.]” 
Skidmore, 323 U.S. at 140.

The Compliance Manual contravenes the position 
the EEOC took in an administrative appeal less than 
a decade ago. See Thomas v. Chertoff. Appeal No. 
0120083515, 2008 WL 4773208, at *1 (E.E.O.C. Office 
of Federal Operations Oct. 24, 2008) (concluding, in 
line with federal cases like Willingham, and Rogers, 
that a grooming policy interpreted to prohibit 
dreadlocks and similar hairstyles lies “outside the 
scope of federal employment discrimination statutes,” 
even when the prohibition targets “hairstyles generally 
associated with a particular race”). The EEOC 
attempts to characterize Thomas as a case about “hair 
length,” which it concedes is not an immutable trait, as 
opposed to “natural hair texture” or the “other racial 
characteristics presented here.” Reply Br. of EEOC at 
27 n.5. That is not a basis for distinction, however, 
because the complainant in Thomas specifically



26a

disputed the employer’s hair length policy in the 
context of “African American males who wear ethnic 
hair styles such as braids.” See Thomas, 2008 WL 
4773208, at *1. And the Commission, in dismissing his 
complaint, cited Willingham and Rogers approvingly to 
support the proposition that “prohibitions against 
‘ethnic’ hairstyles generally associated with a 
particular race or ethnic group” are “typically outside 
the scope of federal employment discrimination 
statutes because they do not discriminate on the basis 
of immutable characteristics.” Id. In our view, the 
Compliance Manual is a change of course from Thomas 
and, because the EEOC has not provided a reasoned 
justification for this shift, we choose to not give its 
guidance much deference or weight in determining the 
scope of Title VII’s prohibition of racial discrimination. 
See, e.g., Young, 135 S. Ct. at 1352 (declining to rely 
significantly on the EEOC Compliance Manual 
because its guidelines were promulgated recently, took 
a position about which the EEOC’s previous guidelines 
were silent, and contradicted positions the EEOC had 
previously taken).

The Compliance Manual also runs headlong into a 
wall of contrary caselaw. In the words of a leading 
treatise, “ [cjourts generally have upheld facially 
neutral policies regarding mutable characteristics, 
such as facial hair, despite claims that the policy has 
an adverse impact on members of a particular race or 
infringes on the expression of cultural pride and 
identification.” BARBARA LINDEMANN & PAUL 
GROSSMAN, 1 EMPLOYMENT DISCRIMINATION 
LAW 6-5 (5th ed. 2012).

As far as we can tell, every court to have



27a

considered the issue has rejected the argument that 
Title VII protects hairstyles culturally associated with 
race. See Cooper v. Am. Airlines, Inc., 149 F.3d 1167, 
1998 WL 276235, at *1 (4th Cir. May 26, 1998) 
(upholding district court’s 12(b)(6) dismissal of claims 
based on a grooming policy requiring that braided 
hairstyles be secured to the head or at the nape of the 
neck); Campbell u. Alabama Dep’t of Corr., No. 2:13- 
CV-00106-RDP, 2013 WL 2248086, at *2 (N.D. Ala. 
May 20, 2013) (“A dreadlock hairstyle, like hair length, 
is not an immutable characteristic.”); Pitts v. Wild 
Adventures, Inc., No. CIV.A.7:06-CV-62-HL, 2008 WL 
1899306, at *5-6 (M.D. Ga. Apr. 25, 2008) (holding 
that a grooming policy which prohibited dreadlocks 
and cornrows was outside the scope of federal 
employment discrimination statutes because it did not 
discriminate on the basis of im m utable 
characteristics); Batman v. United Parcel Serv., 194 F. 
Supp. 2d 256, 259—67 (S.D.N.Y. 2002) (holding that an 
employer’s policy prohibiting “unconventional” 
hairstyles, including dreadlocks, braids, and cornrows, 
was not racially discriminatory in violation of Title 
VII); McBride v. Lawstaf, Inc., No. CIV. A.L96-CV- 
0196C, 1996 WL 755779, at *2 (N.D. Ga. Sept. 19, 
1996) (holding that a grooming policy prohibiting 
braided hairstyles does not violate Title VII); Rogers, 
527 F. Supp. at 232 (holding that a grooming policy 
prohibiting an all-braided hairstyle did not constitute 
racial discrimination, and distinguishing policies that 
prohibit Afros, because braids are not an immutable 
characteristic but rather “the product of . . . artifice”); 
Carswell v. Peachford Hosp., No. C80-222A, 1981 WL 
224, at *2 (N.D. Ga. May 26, 1981) (“There is no 
evidence, and this court cannot conclude, that the



28a

wearing of beads in one’s hair is an immutable 
characteristic, such as national origin, race, or sex. 
Further, this court cannot conclude that the 
prohibition of beads in the hair by an employer is a 
subterfuge for discrimination.”); Wofford v. Safeway 
Stores, Inc., 78 F.R.D. 460, 470 (N.D. Cal. 1978) 
(explaining that the “even-handed application of 
reasonable grooming regulations has uniformly been 
held not to constitute discrimination on the basis of 
race”) (internal citations omitted); Thomas v. Firestone 
Tire & Rubber Co., 392 F. Supp. 373, 375 (N.D. Tex. 
1975) (holding that a grooming policy regulating hair 
length and facial hair, which was applied even- 
handedly to employees of all races, did not violate Title 
VII or 42 U.S.C. § 1981). See also Brown v. D.C. 
Transit System, 523 F.2d 725, 726 (D.C. Cir. 1975) 
(rejecting claim by black male employees that race- 
neutral grooming regulation, which prohibited most 
facial hair, violated Title VII despite contention by 
employees that the regulation was “an ‘extreme and 
gross suppression of them as black men and (was) a 
badge of slavery’ depriving them ‘of their racial 
identity and virility’”).

D

We would be remiss if we did not acknowledge 
that, in the last several decades, there have been some 
calls for courts to interpret Title VII more expansively 
by eliminating the biological conception of “race” and 
encompassing cultural characteristics associated with 
race. But even those calling for such an interpretive 
change have different visions (however subtle) about 
how “race” should be defined. Compare, e.g., Ian F. 
Haney Lopez, The Social Construction of Race: Some



29a

Observations on Illusion, Fabrication, and Choice, 29 
HARV. C.R.-C.L. L. REV. 1, 7 (1994) (defining “race” 
as “a vast group of people loosely bound together by 
historically contingent, socially significant elements of 
their morphology and/or ancestry”), and Rich, 
Performing Racial and Ethnic Identity, 79 N.Y.U. L. 
REV. at 1142 (“There is an urgent need to redefine 
Title VII’s definition of race and ethnicity to include 
both biological, visible racial/ethnic features and 
performed features associated with racial and ethnic 
identity.”), with, e.g., D. Wendy Greene, Title VII: 
What’s Hair (and Other Race-Based Characteristics) 
Got to Do With It?, 79 U. COLO. L. REV. 1355, 1385 
(2008) (“Race includes physical appearances and 
behaviors that society, historically and presently, 
commonly associates with a particular racial group, 
even when the physical appearances and behavior are 
not ‘uniquely’ or ‘exclusively’ ‘performed’ by, or 
attributed to a particular racial group.”), and Barbara 
J. Flagg, Fashioning a Title VII Remedy for 
Transparently White Subjective Decisionmaking, 104 
YALE L. J. 2009, 2012 (1995) (suggesting that 
discrimination on the basis of race might include 
“personal characteristics that. . . intersect seamlessly 
with [one’s racial] self-definition”).

Yet the call for interpreting “race” as including 
culture has not been unanimous. This is in part 
because culture itself is (or can be) a very broad and 
ever-changing concept. See, e.g., Richard T. Ford, Race 
as Culture: Why Not?, 47 U.C.L.A. L. REV. 1803, 
1813 (2000) (“Culture is a much more problematic 
category for legal intervention than race, because 
culture in a broad sense encompasses almost any 
possible motivation for human behavior.”). Cf. Annelise



30a

Riles, Cultural Conflicts, 71 L. & CONTEMP, PROBS. 
273, 285 (2008) (“ [C]ultures are hybrid, overlapping, 
and creole: forces from trade to education to migration 
to popular culture and transnational law ensure that 
all persons participate in multiple cultures at once. 
Cultural elements circulate globally, and they are 
always changing. From this point of view, ‘culture’ is 
more of a constant act of translation and re-creation or 
re-presentation than it is a fixed and given thing.”).

Assuming that general definitional consensus 
could be achieved among those who advocate the 
inclusion of culture within the meaning of “race,” and 
that courts were willing to adopt such a shared 
understanding of Title VII, that would only be the 
beginning of a difficult interpretive battle, and there 
would be other very thorny issues to confront, such as 
which cultural characteristics or traits to protect. See, 
e.g., Kenji Yoshino, Covering, 111 YALE L. J. 769, 893 
(2002) (“Even [in] . . .  a culture-race analysis . . . one 
must still ask whether covering demands pertaining to 
grooming are sufficiently constitutive of race to violate 
bans on race discrimination.”). There would also be the 
related question of whether cultural characteristics or 
traits associated with one racial group can be absorbed 
by or transferred to members of a different racial 
group. At oral argument, for example, the EEOC 
asserted that if a white person chose to wear 
dreadlocks as a sign of racial support for her black 
colleagues, and the employer applied its dreadlocks 
ban to that person, she too could assert a race-based 
disparate treatment claim.

The resolution of these issues, moreover, could 
itself be problematic. See Ford, Race as Culture, 47



31a

U.C.L.A. L. REV. at 1811 (explaining that recognizing 
a right to cultural protection under the ambit of “race” 
would require “courts to determine which expressions 
are authentic and therefore deserving of protection,” 
and the “result will often be to discredit anyone who 
does not fit the culture style ascribed to her racial 
group”). Even if courts prove sympathetic to the “race 
as culture” argument, and are somehow freed from 
current precedent, how are they to choose among the 
competing definitions of “race”? How are they (and 
employers, for that matter) to know what cultural 
practices are associated with a particular “race”? And 
if cultural characteristics and practices are included as 
part of “race,” is there a principled way to figure out 
which ones can be excluded from Title VII’s protection?

We cannot, and should not, forget that we—and 
courts generally—are tasked with interpreting Title 
VII, a statute enacted by Congress, and not with 
grading competing doctoral theses in anthropology or 
sociology. Along these lines, consider the critique by 
Richard Ford of the attempt to have Title VII protect 
cultural characteristics or traits associated with race:

Once a status is ascribed, it is “immutable” 
in the pragmatic sense that the individual 
cannot readily alter it. This is the sense in 
which immutability is relevant to anti- 
discrimination law.

The mutability of a racial characteristic 
then, is strictly speaking, irrelevant, but not 
because—as difference discourse would have 
it—anti-discrimination law should prohibit 
discrimination based on mutable as well as 
immutable racial characteristics, but rather



32a

because racial characteristics generally are 
irrelevant. And it is quite right to say that 
a n t i-d is c r im in a t io n  law  p r o h ib its  
discrimination on the basis of “immutable 
characteristics.” But it does not follow that the 
immutable characteristics in question are 
characteristics of race; instead they are any 
characteristic of potential plaintiffs that may 
be proxies for racial status.

This cuts against some common locutions 
that the law prohibits discrimination against 
racial groups; that it prohibits discrimination 
on the basis of racial characteristics; that it 
protects racial minorities; worst of all that it 
“protects race.” On my formulation it does 
none of these. Indeed it could not do these 
things because to do them it would first 
require a definition of a racial group, racial 
characteristic, and/or race—none of which 
courts have readily [at] hand. Instead, law 
prohibits discrimination on the basis of 
race—something it can do without knowing 
what race is and indeed without accepting that 
race is something that is knowable. To prohibit 
discrimination on the basis of race, we need 
only know that there is a set of ideas about 
race that many people accept and decide to 
prohibit them from acting on the basis of these 
ideas.

Richard Ford, RACIAL CULTURE: A CRITIQUE 103
(2005).

Our point is not to take a stand on any side of this
debate—we are, after all, bound by Willingham and



33a

Garcia—but rather to suggest that, given the role and 
complexity of race in our society, and the many 
different voices in the discussion, it may not be a bad 
idea to try to resolve through the democratic process 
what “race” means (or should mean) in Title VII. Cf. 
Juan F. Perea, Ethnicity and Prejudice: Reevaluating 
‘National Origin’ Discrimination under Title VII, 35 
WM. & MAEY L. REV. 805, 861 (1994) (proposing that 
Congress amend Title VII to protect against 
discrimination based on ethnic traits).6

V

Ms. Jones told CMS that she would not cut her 
dreadlocks in order to secure a job, and we respect that 
intensely personal decision and all it entails. But, for 
the reasons we have set out, the EEOC’s original and 
proposed amended complaint did not state a plausible 
claim that CMS intentionally discriminated against 
Ms. Jones because of her race. The district court 
therefore did not err in dismissing the original 
complaint and in concluding that the proposed 
amended complaint was futile.

AFFIRMED.

6 Religion is, of course, different from race in many ways, 
but it bears noting that Congress amended Title VII in 1972 to 
expand protection for “religious observance and practice.” See 42 
U.S.C. § 2000e(j); E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 
135 S. Ct. 2028, 2034 (2015). It has not, however, prohibited 
discrimination on the basis of cultural practices associated with 
race.



34a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR 
THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION

CIVIL ACTION NO. 13-00476-CB-M

EQUAL EMPLOYMENT 
OPPORTUNITY COMMISSION,

Plaintiff,
v.

CATASTROPHE MANAGEMENT SOLUTIONS,

Defendant.

OPINION and ORDER

This matter is before the Court on a motion to 
dismiss filed by the defendant, Catastrophe 
Management Solutions (CMS). (Doc. 7) Defendant 
argues that the complaint filed by the Equal 
Employment Opportunity Commission (EEOC), which 
alleges that CMS engaged in intentional racial 
discrimination, fails to state a claim upon which relief 
can be granted. The EEOC has filed a response to the 
motion to dismiss (Doc. 13), and CMS has filed a reply 
brief (Doc. 16). After due consideration of the issues 
and the applicable law, the Court finds that the motion 
to dismiss is due to be granted.

The Complaint

The Complaint’s pertinent factual and legal 
assertions are straightforward and brief. The EEOC



35a

alleges that CMS “engaged in unlawful employment 
practices... in violation of 42 U.S.C. § 2000e-(a)(l) and 
42 U.S.C. § 2000e-2(m) [Title VII] by implementing a 
policy that prohibited employees from wearing 
dreadlocks and enforcing that policy against Chastity
C. Jones.” 1(Compl. H 7, Doc. 1.) CMS’s policy states:

All personnel are expected to be dressed and 
groomed in a manner that projects a 
professional and businesslike image while 
adhering to company and industry standards 
and/or guidelines . . .  hairstyles should reflect a 
business/professional image. No excessive 
hairstyles or unusual colors are acceptable . . .

(Id. 8.)

CMS “interpreted [this] policy to prohibit 
dreadlocks,” made an offer of employment to Jones, on 
the condition that Jones “cut[ ] off her dreadlocks, and 
then withdrew the offer . . . when she declined [to cut 
her dreadlocks].” {Id. HU 9-10.) The Complaint alleges 
that “Defendant’s application of its policy to prohibit 
dreadlocks constitutes an employment practice that 
discriminates on the basis of race, black” and that the 1

1 The EEOC has authority to bring a civil action against an 
employer for violation of Title VII of the Civil Rights Act of 1964, 
42 U.S.C. §§ 2000e-l et seq. under 42 U.S.C. §§ 2000e-2(a) (1) and 
2000e-2(m). The former makes it unlawful for an employer “to 
fail or refuse to hire ... because of [an] individual’s race, color 
religion, sex or national origin.” 42 U.S.C. § 2000e-2(a)(l). The 
latter provides that “an unlawful employment practice is 
established when the complaining party demonstrates that race, 
color, religion, sex, or national origin was a motivating factor for 
any employment practice, even though other factors also 
motivated the practice.” 42 U.S.C. § 2000e-2(m).



36a

policy has “deprive [d] [Jones] of equal employment 
opportunities and [] otherwise adversely affect[ed] her 
status as an employee because of her race:’ (Id. % 12.) 
Finally, the Complaint asserts that “the [alleged] 
unlawful employment practices . . . were intentional 
[and]. . . done with malice or reckless indifference” to 
[Jones’s] federally protected rights.” (Id. at 13-14.)

Standard of Review
A complaint must “set forth a short and plain 

statement of the claim showing that the pleader is 
entitled to relief.” Fed. R. Civ. P. 8(a)(2). In Bell 
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the 
Supreme Court set forth the parameters of a 
well-pleaded complaint. A claim for relief “must set 
forth enough factual matter (taken as true) to suggest 
[the required elements of a cause of action].” Id. at 556; 
see also Watts v. Florida Int’l Univ., 495 F.3d 1289, 
1295 (11th Cir. 2007) (applying Twombly).
Furthermore, a complaint must “provide the defendant 
with fair notice of the factual grounds on which the 
complaint rests.” Jackson v. BellSouth Telecomm., Inc., 
372 F.3d 1250, 1271 (11th Cir. 2004).

In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the 
Supreme Court further refined the threshold 
requirements for a claim under Rule 8(a)(2).

Two working principles underlie our 
decision in Twombly. First, the tenet that 
a court must accept as true all of the 
allegations contained in a complaint is 
inapplicable to legal conclusions. 
Threadbare recitals of the elements of a 
cause of action, supported by mere



37a

conclusory statements, do not suffice. Rule 
8 marks a notable and generous departure 
from the hyper-technical, code-pleading 
regime of a prior era, but it does not unlock 
the doors of discovery for a plaintiff armed 
with nothing more than conclusions. 
Second, only a complaint that states a 
plausible claim for relief survives a motion 
to dismiss. Determining whether a 
complaint states a plausible claim for relief 
will . . .  be a context-specific task that 
requires the reviewing court to draw on its 
judicial experience and common sense. But 
where the well-pleaded facts do not permit 
the court to infer more than the mere 
possibility of misconduct, the complaint has 
alleged-but it has not “show[n]’’- “that the 
pleader is entitled to relief.”

Iqbal, 556 U.S. 678-79 (quoting Fed. R. Civ. P. 8(a)(2)) 
(other citations omitted). “[W]here the well-pleaded 
facts do not permit the court to infer more than the 
mere possibility of misconduct, the complaint has 
alleged—but it has not ‘show[n]’-—‘that the pleader is 
entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 
8(a)(2)).

Legal Analysis

CMS has moved to dismiss because the facts 
alleged in the Complaint do not support a plausible 
claim for intentional discrimination. The EEOC’s 
Complaint asserts that CMS refused to hire Jones 
because she is black. The factual allegations in 
support of that claim are simple. CMS interpreted its



38a

grooming policy to prohibit dreadlocks. Because Jones 
refused to cut her dreadlocks, CMS rescinded its offer 
to hire her. CMS argues that a grooming policy based 
on a “mutable” characteristic, such as hairstyle, is not 
racially discriminatory. The EEOC’s response is 
twofold. First, it contends that the pleading standard 
urged by CMS is too stringent and that it is not 
required to plead its legal theory in the Complaint. 
Second, it argues, for various reasons, that a company 
policy that prohibits dreadlocks is racially 
discriminatory.

Complaint M ust Contain Facts to Support
a Viable Legal Theory

The EEOC’s argument that it need not plead a 
legal theory is a statement of the obvious. The issue is 
whether the Complaint contains sufficient factual 
allegations to support a claim of intentional 
discrimination. While it is not necessary to plead the 
elements of a prima facie case of discrimination, “a 
pleading [cannot] survive dismissal when it consists] 
of only the barest of conclusory allegations without 
notice of the factual grounds on which they purport to 
be based.” Jackson, 372 F.3d at 1271. As case law cited 
by the EEOC acknowledges, a complaint need not 
allege a legal theory, but it must “’contain inferential 
allegations from which [a court] can identify each of 
the material elements necessary to sustain a recovery 
under some viable legal theory.’” Balaschak v. Royal 
Caribbean Cruises, Ltd., 2009 WL 8659594 (S.D. Fla 
Sept. 14, 2009) (quoting Roe v. Aware Woman Ctr. For 
Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001)).



39a

The EEOC implies that the pleading standard is 
somehow different or less stringent with respect to the 
element of intent. Citing Iqbal, it argues that “in 
disparate treatment cases like this one-where the fact 
of employer intent is critical-a court should be 
especially wary of dismissing the complaint for failure 
to state a claim.” (Pl.’s Resp. 5, Doc. 13.) The cited 
portion of Iqbal does not support such a conclusion. 
There the Court addressed the respondent’s claim that 
Fed. R. Civ. P. 9(b) “expressly allowfed] him to allege 
[ ] discriminatory intent ‘generally,’ . . . [i.e.,] with a 
conclusory allegation.” Iqbal, 556 U.S. at 686. The 
Court rejected that argument, holding that the term 
“generally” in Rule 9(b) “merely excuses a party from 
pleading discriminatory intent under [the] elevated 
pleading standard” applicable to fraud claims. Id. at 
687. After rejecting the argument that Rule 9(b) 
provided special dispensation for pleading intent 
“generally,” the Court returned to the applicable 
pleading requirements of Rule 8, which ’’does not 
empower a respondent to plead the bare elements of 
his cause of action, affix the label ‘general allegation,’ 
and expect his complaint to survive a motion to 
dismiss.” Id.

The Facts Alleged in the Complaint Do Not
Support a Plausible Claim o f Intentional
Discrim ination

It has long been settled that employers’ grooming 
policies are outside the purview of Title VII. In 
Willingham v. Macon Tel. Publ’g  Co., 507 F.2d 1084 
(5th Cir. 1975) (en banc), the former Fifth Circuit 
addressed the discriminatory impact of a grooming 
policy in the context of a sex discrimination claim.



40a

Pointing out that the purpose of Title VII is to provide 
equal access to the job market, the court held.

Equal employment opportunity may be 
secured only when employers are barred 
from discriminating against employees on 
the basis of immutable characteristics, such 
as race and national origin. . . . [A] hiring 
policy that distinguishes on some . . . 
ground [other than sex], such as grooming 
codes or length of hair, is related more 
closely to the employer’s choice of how to 
run his business than to equality of
employment opportunity-----Hair length is
not immutable and in the situation of 
employer vis a vis employee enjoys no 
constitutional protection. If the employee 
objects to the grooming code he has the 
right to reject it by looking elsewhere for 
employment, or alternatively he may 
choose to subordinate his preference by 
accepting the code a long with the job.

Id. at 1091.2
Many courts have addressed policies restricting 

hairstyles and have determined such restrictions to be 
nondiscriminatory. For example, in Rogers v. American 
Airlines, Inc., 527 F. Supp. 229 (S.D.N.Y. 1981), the 
plaintiff challenged her employer’s grooming policy 
that prohibited employees from wearing an “all-

2 Cases decided by the Fifth Circuit prior to October 1,1981 
are binding precedent. Bonner v. City of Prichard, 661 F.2d 1206 
(11th Cir. 1981) (en banc).



41a

braided hairstyle,” asserting that it discriminated on 
the basis of race and sex. Id. at 231. Rogers argued 
that the “cornrow” hairstyle had cultural and 
historical significance to black women. Id. at 231-32. 
The court rejected this argument and dismissed the 
complaint, holding that “an all-braided hairstyle . . . 
is an ‘easily changed characteristic,’ and, even if 
socioculturally associated with a particular race or 
nationality, is not an impermissible basis for 
distinctions in the application of employment practices 
by an employer.” Id. at 232.

In Eatman v. United Parcel Serv., 194 F.Supp.2d 
256 (S.D.N.Y. 2002), UPS’s policy grooming policy 
required company drivers to wear hats to cover 
“unconventional” hairstyles. Eatman, who wore his 
hair in dreadlocks, was ultimately fired for his refusal 
to wear a hat. Eatman filed an employment 
discrimination action under Title VII asserting, inter 
alia, a claim for racial discrimination based on UPS’s 
“facially discriminatory grooming policy.” Id. at 261- 
62. Eatman argued that the company’s appearance 
guidelines were “facially discriminatory because they 
single[d] out African-Americans on the basis of a 
characteristic—locked hair—that is unique to 
African-Americans.” Id. at 262. The court concluded 
that “locked hair” is not unique to African Americans 
and that “it is beyond cavil that Title VII does not 
prohibit discrimination on the basis of locked hair.” Id.

Other courts have reached the same conclusion 
regarding various types of restrictions on hairstyles. In 
Pitts v. Wild Adventures, Inc., 2008 WL 1899306 (M.D. 
Ga. Apr. 25, 2008), the plaintiff argued that the 
defendants grooming policy was “racially



42a

discriminatory because it prohibit[ed] ‘Afro—centric 
hairstyles’ such as dreadlocks and cornrows.” Id. at *6. 
The court rejected this argument, holding that the 
policy was facially neutral because “ [djreadlocks and 
cornrows are not immutable characteristic,” and, 
therefore, a policy that prohibits these hairstyles is not 
discriminatory.3 Id. See also Gadson u. Ala. Dept, of 
Corr., 2013 WL 3879903 (N.D. Ala. July 26, 2013) 
(dismissing, with leave to amend, plaintiffs disparate 
impact claim based on ADOC’s policy prohibiting 
dreadlocks); Campbell v. Ala. Dept, of Corr., 2013 WL 
2248086 (N.D. Ala. May 20, 2013) (same).

Based on these cases, the outcome here is clear. 
The EEOC asserts that the policy itself was 
discriminatory because it was interpreted to prohibit 
dreadlocks, which is a hairstyle.4 Title VII prohibits 
discrimination on the basis of immutable 
characteristics, such as race, sex, color, or national 
origin. A hairstyle, even one more closely associated 
with a particular ethnic group, is a mutable 
characteristic. Therefore, the Complaint fails to state 
a plausible claims for relief.

The EEOC asserts several arguments in an 
attempt to convince the Court that its claim is 
sufficiently plausible to survive a motion to dismiss.

3 Pitts involved a claim brought under 42 U.S.C. § 1981, but 
Title VII and § 1981 employment discrimination claims are 
analyzed in the same manner. Standard v. A.B.E.L. Serv., Inc., 
161 F.3d 1318, 1330 (11th Cir. 1998).

4 To be clear, the EEOC does not argue that the policy was 
discriminatorily applied; nor are there any facts alleged in the 
Complaint that would support an such a claim.



43a

First, it argues that hairstyle can be a determinant of 
racial identity. That argument was rejected, either 
implicitly or explicitly, in the cases cited above. Next, 
it argues that Rogers and the cases relying on it are 
wrongly decided because “their construct of race is far 
too narrow,” (Pi’s Resp. 10.) According to the EEOC, 
the definition of race should encompass both physical 
and cultural characteristics, even when those cultural 
characteristics are not unique to a particular group. 
But as the defendant points out, to define race by non­
unique cultural characteristics could lead to absurd 
results. For instance, a policy prohibiting dreadlocks 
would not apply to African Americans but would apply 
to whites. Moreover, culture and race are two distinct 
concepts. Culture is “a set of behavioral characteristics 
and therefore significantly dissimilar from the 
immutable characteristics of race and national origin.” 
United States v. Guzman, 236 F.3d 830, 835 (7th Cir. 
2001) (Ripple, J., concurring in part and dissenting in 
part) (discussing cultural heritage versus national 
origin as a basis for departure under United States 
Sentencing Guidelines). The EEOC also asserts that 
the immutable versus mutable distinction should be 
rejected and that certain traits should be protected 
from discrimination. The law, however, prohibits 
discrimination on the basis of “race, color, religion, sex, 
or national origin” 42 U.S.C. § 2000e-2(a)(l), and not 
on the basis of “traits.” Next the EEOC argues that 
courts have given too much deference to employer 
grooming policies, which has allowed employers to 
apply their policies in a discriminatory manner. That 
argument says nothing about how the facts alleged in 
this complaint support a claim that this employer



44a

applied the grooming policy in a discriminatory 
manner.

Finally, the EEOC contends that it should be 
allowed to present expert testimony and to develop the 
facts prior to dismissal. It alleges that “[ex]pert 
testimony will help establish underlying factual 
predicate[s].” (Pl.’s Resp. 13.) The first is “that Blacks 
are primary wearers of dreadlocks.5' (Id., emphasis 
added.) Since Blacks are not the exculsive wearers of 
dreadlocks, that testimony would not support 
Plaintiffs claim that a prohibition on dreadlocks 
discriminates against Blacks. Next, the EEOC’s expert 
testimony would show that dreadlocks “are a 
reasonable and natural method of managing the 
physiological construct of Black hair, and that 
dreadlocks are an immutable characteristic, unlike 
hair length or other hairstyles.” (Id.) But a hairstyle is 
not inevitable and immutable just because it is a 
reasonable result of hair texture, which is an 
immutable characteristic. No amount of expert 
testimony can change the fact that dreadlocks is a 
hairstyle. The EEOC would also offer expert testimony 
that “the wearing of dreadlocks by Blacks has 
socio-cultural racial significance.” (Id. 14.) As 
discussed, supra at 8, Title VII does not protect against 
discrimination based on traits, even a trait that has 
socio-cultural racial significance.

Conclusion

For the reasons set forth above, the Court finds 
that the Complaint fails to state a plausible claim for 
employment discrimination based on race. Accordingly, 
the motion to dismiss is hereby GRANTED.



45a

DONE and ORDERED this the 27th day of 
March, 2014.

s/Charles R. Butler, Jr.
Senior United States D istrict Judge



46a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT FOR 
THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION

CIVIL ACTION NO. 13-00476-CB-M

EQUAL EMPLOYMENT 
OPPORTUNITY COMMISSION,

Plaintiff,
v.

CATASTROPHE MANAGEMENT SOLUTIONS,
Defendant.

ORDER

This matter is before the Court on the EEOC’s 
motion for leave to amend the complaint and 
supporting briefs (Docs. 21, 22 & 26) and on 
Catastrophe Management Systems’ (CMS) response in 
opposition (Doc. 23). For reasons discussed below, the 
Court finds that amendment would be futile.

Upon motion CMS’s motion, the Court dismissed 
the EEOC’s original complaint for failure to state a 
plausible claim for relief. Simply put, the original 
complaint alleged that CMS’s grooming policy 
prohibiting dreadlocks was an unlawful, racially 
discriminatory employment practice and that CMS 
intentionally discriminated against a job applicant, 
Chastity Jones, on the basis of her race because by 
rescinding its offer to hire her when she refused to cut 
off her dreadlocks. CMS moved to dismiss the



47a

complaint, arguing that a company grooming policy 
based on a mutable characteristic, such as hairstyle, is 
not racially discriminatory. The EEOC disagreed and 
set out numerous factual and legal arguments in 
support of its theory that a policy prohibiting 
dreadlocks amounts to intentional racial 
discrimination. In the order granting the motion to 
dismiss, this Court addressed each of the EEOC’s legal 
and factual arguments and concluded that “Title VII 
prohibits discrimination on the basis of immutable 
characteristics, such as race, sex, color, or national 
origin” but does not afford protection based on a 
hairstyle, such as dreadlocks. (Order p. 8, Doc. 19.)

Leave to amend the complaint may be denied when 
amendment would be futile, i.e., “when the complaint 
as amended is still subject dismissal.” Hall v. United 
Ins. Co. of America, 367 F.3d 1255, 1263 (11th Cir. 
2004) (quoting Burger King Corp. v. Weaver, 169 F.3d 
1310, 1320 (11th Cir. 1999)(citation omitted)). The 
EEOC’s proposed amended complaint offers nothing 
new. It merely sets out in detail the factual and legal 
assertions upon which it relied in its opposition to the 
motion to dismiss. Amending the complaint to add 
these previously rejected arguments would not change 
the outcome. Consequently, the motion for leave to 
amend is DENIED.

DONE and ORDERED this the 2nd day of June,
2014.

s/Charles R. Butler, Jr.
Senior United States D istrict Judge



48a

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

No. 14-13482

D.C. Docket No. l:13-cv-00476-CB-M

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION,

Plaintiff-Appellant,
versus

CATASTROPHE MANAGEMENT SOLUTIONS,
Defendant-Appellee.

Appeal from the United States District Court 
for the Southern District of Alabama

Before ED CARNES, Chief Judge, TJOFLAT, HULL, 
MARCUS, WILSON, WILLIAM PRYOR, MARTIN, 
JORDAN, ROSENBAUM, JULIE CARNES, and JILL 
PRYOR Circuit Judges.*

BY THE COURT:
A petition for rehearing having been filed and a 

member of this Court in active service having 
requested a poll on whether this case should be 
reheard by the Court sitting en banc, and a majority of

* Judge Kevin C. Newsom, who joined the Court on 
August 4, 2017, did not participate in the en banc poll that was 
conducted in this case.



49a

the judges in active service on this Court having voted 
against granting a rehearing en banc, it is ORDERED 
that his case will not be reheard en banc.



50a

JORDAN, Circuit Judge, concurring in the denial of 
rehearing en banc:

Catastrophe Management Solutions does not hire 
anyone, black or white, who uses an “excessive 
hairstyle[ ],” a category that includes dreadlocks. So 
when Chastity Jones, a black woman, refused to 
remove her dreadlocks, CMS rescinded her 
employment offer. The EEOC sued on her behalf, 
claiming that “ [a] prohibition of dreadlocks in the 
workplace constitutes race discrimination because 
dreadlocks are a manner of wearing the hair that is 
physiologically and culturally associated with people 
of African descent.” D.E. 21-1 at  ̂ 28 (EEOC’s 
proposed amended complaint). The EEOC’s lawsuit, in 
other words, sought to expand the definition of 
“race”—a term undefined in Title VII—to include 
anything purportedly associated with the culture of a 
protected group.

The district court dismissed the case, and a panel 
of this court affirmed because the EEOC’s complaint 
did not allege—as required by our Title VII disparate- 
treatment precedent—that dreadlocks are an 
immutable characteristic of black individuals. See 
Equal Employment Opportunity Comm’n v. 
Catastrophe Mgmt. Sols., 852 F.3d 1018, 1021, 
1028-30 (11th Cir. 2016) (applying Willingham v. 
Macon Tel. Publ’g Co., 507 F.2d 1084 (5th Cir. 1975) 
(en banc), and Garcia v. Gloor, 618 F.2d 264 (5th Cir. 
1980)). A majority of this court has declined to rehear 
the case en banc, prompting Judge Martin to dissent 
from the denial of rehearing with a thoughtful critique 
of the panel opinion.



51a

But as insightful as Judge Martin’s dissent is, and 
as difficult as the issues presented are, dismissing the 
complaint was the correct legal call. Under our 
precedent, banning dreadlocks in the workplace under 
a race-neutral grooming policy—without more—does 
not constitute intentional race-based discrimination. 
First, dreadlocks are not, according to the EEOC’s 
proposed amended complaint, an immutable 
characteristic of black individuals. Second, the 
allegations in the complaint do not lend themselves to 
a reasonable inference that, in applying its grooming 
policy to dreadlocks, CMS discriminated against Ms. 
Jones because of her race.

* * * * *

To start, I think Judge Martin overstates what the 
Supreme Court held in Price Waterhouse v. Hopkins, 
490 U.S. 228 (1989). She says that a majority of the 
Court in Price Waterhouse allowed the plaintiff to 
claim disparate treatment for behavior she could have 
changed. And that, she contends, cannot be squared 
with Willingham and its immutability requirement. 
Her argument draws exclusively from the four-justice 
plurality opinion, which she says constitutes the 
holding of the case because Justice White and Justice 
O’Connor, each of whom concurred in the judgment, 
did not dispute the plurality’s rationale. Assuming 
that is the correct reading of the concurring opinions, 
I believe Price Waterhouse and our decision in 
Willingham can be reconciled because the Price 
Waterhouse plurality did not hold that Title VII 
protects mutable characteristics.



52a

In Price Waterhouse, Ann Hopkins, a woman, sued 
for sex discrimination when she was denied 
partnership at a well-known accounting firm. 
Although there was evidence that the firm's partners 
had disparaged Ms. Hopkins’ demeanor as 
insufficiently feminine, Price Waterhouse seemed to 
argue on appeal that such comments were irrelevant 
for Title VII purposes. See Price Waterhouse, 490 U.S. 
at 250-51. The plurality rejected that argument, 
explaining that while stereotyped remarks did not 
“inevitably prove” a disparate-treatment claim, they 
could “certainly be evidence” that the firm “actually 
relied on [Ms. Hopkins’] gender in making its 
[employment] decision,” in violation of Title VII. See 
id. at 251 (emphasis in original).

Put differently, the Price Waterhouse plurality 
made the unremarkable observation that, when an 
employer makes a decision based on a mutable 
characteristic (demeanor) that is linked by stereotype 
(how women should behave) to one of Title VII s 
protected categories (a person’s sex), the decision may 
be impermissibly based on the protected category, so 
the attack on the mutable characteristic is legally 
relevant to the disparate-treatment claim. But a 
plaintiff must still ground her disparate-treatment 
claim on one of the protected Title VII categories, 
which Willingham tells us are immutable.

In my view, Price Waterhouse did not elevate 
mutable features, independent of a protected category, 
to protected status. See Jespersen v. Harrah’s 
Operating Co., 444 F.3d 1104, 1111 (9th Cir. 2006) (en 
banc) (interpreting Price Waterhouse as a mixed- 
motive discrimination case in which the Supreme



53a

Court clarified that stereotypes can serve as evidence 
that an employer unlawfully considered sex in making 
an employment decision); Chapman v. AI Transp., 229 
F.3d 1012, 1036 (11th Cir. 2000) (en banc)
(distinguishing between a mutable trait and an 
“impermissible consideration”—that is, a protected 
category). And because it did not, merely prohibiting 
a mutable characteristic does not, as Judge Martin and 
the EEOC argue, constitute discrimination.

Title VII, the Supreme Court has told us, is not “a 
general civility code for the American workplace.” 
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 
53. 68 (2006) (quoting Oncale v. Sundowner Offshore 
Servs., Inc., 523 U.S. 75, 80 (1998)). It requires courts 
to determine whether a particular policy is 
discriminatory, but not whether it is ideal or fair. The 
panel here was not tasked with addressing whether 
CMS’ grooming policy is enlightened, or whether it 
makes sense in our multicultural and evolving society. 
The panel decided only whether the EEOC sufficiently 
alleged a Title VII disparate-treatment claim under 
Supreme Court and Eleventh Circuit precedent.

* * * * *

Judge Martin takes aim at a purported internal 
consistency in the panel opinion, arguing that, if 
immutability is the rule, the panel provided two 
different, conflicting definitions of the term. The first 
is that an immutable trait is something “beyond the 
victim’s power to alter,” a phrase the panel quoted 
from the binding Former Fifth Circuit decision in 
Garcia. Judge Martin maintains that this definition 
is inconsistent with the panel’s reliance on Jenkins v.



54a

Blue CrossMut. Hosp. Lis., Inc., 538 F.2d 164 (7th Cir. 
1976) (en banc), which recognized a race- 
discrimination claim for a black plaintiff who alleged 
she was denied promotion for wearing an afro, because 
both afros and dreadlocks can be altered. Given this 
supposed inconsistency, Judge Martin concludes that 
the panel actually defined immutable as “naturally 
occurring,” and argues that the complaint sufficiently 
alleged that dreadlocks occur naturally in black 
individuals’ hair.

The panel opinion isn’t as confusing as Judge 
Martin makes it seem. The two definitions provided 
are not at odds because the panel used the phrase 
“beyond the victim’s power to alter” to refer to a trait 
that a person cannot change permanently because it is 
present from birth. See THE AMERICAN HERITAGE 
DICTIONARY OF THE ENGLISH LANGUAGE 878 
(4th ed. 2009) (defining “immutable” as “ [n]ot subject 
or susceptible to change”). The opinion, in so many 
words, made this abundantly clear. See, e.g., 
CatastropheMgmt., 852 F.3d at 1026—27. This is also 
what courts after Willingham have understood 
immutability to mean. See, e.g., Earwood u. Cont’l Se. 
Lines, Inc., 539 F.2d 1349, 1351 (4th Cir. 1976) 
(following Willingham  and explaining that 
“discrimination based on . . . immutable sex
characteristics . . . violate[s] [Title VII] because they 
present obstacles to employment of one sex that cannot 
be overcome”) (emphasis added). Indeed, when the 
Former Fifth Circuit in Garcia employed the phrase, 
it gave as examples a person’s “place of birth” and “the 
place of birth of his forebears.” See Garcia, 618 F.2d at 
269.



55a

Judge Martin’s critique of the panel opinion 
conflates altering a characteristic with masking it. 
Those two concepts are distinct; if a trait can be 
masked momentarily but will eventually revert to its 
natural state, it is immutable because it is “beyond the 
[person’s] power to alter.”

According to Judge Martin, the panel also 
differentiated between dreadlocks and afros based on 
“its own notion that the only natural black hair is an 
[a]fro.” The panel, however, accepted that an afro was 
the natural state of Ms. Jenkins’ hair because Ms. 
Jenkins said it was. Ms. Jenkins had alleged that, 
after years of manipulating her hair into different 
styles, she suffered racial discrimination only when 
she allowed her hair to revert to its “natural. . . style” 
— an afro. See Jenkins, 538 F.2d at 167 (emphasis 
added).

Here the EEOC presented a completely different 
theory of discrimination in its proposed amended 
complaint. It asserted that dreadlocks are protected 
under Title VII because they are culturally and 
physiologically associated with individuals of African 
descent. Even if this somehow does not constitute 
abandonment of the argument that dreadlocks are an 
immutable characteristic of black individuals, the 
complaint failed to assert that dreadlocks are a black 
individual’s hair in its natural, unmediated state.

* * * * *

Judge Martin cites to portions of the complaint she 
believes alleged that dreadlocks occur naturally. But 
when read in context, the allegations Judge Martin 
cites to do not support her position. The complaint’s



56a

thesis is that dreadlocks are a hairstyle that is 
suitable for black individuals’ hair, and the snippets 
she selects are not to the contrary. See, e.g., D.E. 21-1 
at H 19, 26, 28.

For example, one of the allegations Judge Martin 
cites is that “ [djreadlocks are formed in a [b]lack 
person’s hair naturally, without any manipulation.” 
Id. at If 19. This phrase, however, comes after the 
introductory sentence of that paragraph, which states 
that “ [djreadlocks [are] a manner of wearing hair that 
is common for [bjlack people and suitable for [bjlack 
hair texture,” and is followed by an acknowledgment 
that dreadlocks can be formed “by the manual 
manipulation of hair into larger coils of hair.” Id.

Indeed, the complaint’s references to the “natural 
texture” of black individuals’ hair, id. at If 27, which 
“naturally grows in very tight coarse coils,” id. at If 22, 
are assertions embedded in a section of the complaint 
dedicated to explaining the uniqueness of black hair 
and the challenges black individuals face when it 
comes to their hair styling choices. See id. at If 22-27. 
That section of the complaint reiterates that 
“dreadlocks are a method of hair styling suitable for 
the texture of black hair and culturally associated 
with [bflack people.” See id. at If 26. Finally, the 
com plaint’s description  of dreadlocks as 
“physiologically and culturally associated with people 
of African descent,” id. at If 28, is similarly followed by 
the statement that dreadlocks are “a manner of 
wearing hair that is suitable to the texture of [bjlack 
hair.” Id.

In sum, the allegations cited by Judge Martin do 
not support the claim that dreadlocks are naturally



57a

occurring. To the contrary, the complaint faithfully 
reflects the overarching theme of the EEOC’s Title VII 
theory—that dreadlocks are a protected cultural 
choice—and it was on that theory that the panel 
resolved the case.

* * * * *

Judge Martin contends that, even if banning 
dreadlocks isn’t per se race discrimination, the 
complaint plausibly stated that CMS used dreadlocks 
as a pretext for not hiring Ms. Jones on account of her 
race. Analogizing to Price Waterhouse, she argues that 
a ban on dreadlocks is a proxy for not employing black 
individuals because the two, according to the 
complaint, are associated by a stereotype that black 
individuals’ hair is unprofessional.

This case, however, is very different from Price 
Waterhouse. In Price Waterhouse, Ms. Hopkins 
plausibly stated a claim of intentional sex 
discrimination because the firm’s partners had, on 
multiple occasions, made it clear that their primary 
grievance—what they described as Ms. Hopkins’ 
“over[ ]aggressive[ness]” and “macho” demeanor—was 
that a woman was displaying traits stereotypically 
associated with men. See Price Waterhouse, 490 U.S. at 
235. They were not shy about it either; one partner 
even admitted that the other partners only objected to 
Ms. Hopkins’ prodigious swearing “because it’s a lady 
using foul language.” Id.

CMS’ prohibition against dreadlocks, by contrast, 
is based on a race-neutral policy that applies with 
equal force to men and women (and hairstyles) of all 
races. So, unlike the situation in Price Waterhouse,



58a

the policy against the allegedly stereotypical 
characteristic (dreadlocks) is unmoored from the 
protected category (Ms. Jones’ race). See Brown v. D.C. 
Transit Sys., Ine., 523 F.2d 725, 728 (D.C. Cir. 1975) 
(holding that, unless there is evidence of pretext or bad 
faith, “[t]he wearing of a uniform, the tj^pe of uniform, 
the requirement of hirsute conformity applicable to 
whites and blacks alike, are simply non-discriminatory 
conditions of employment”) (emphasis added). See also 
Jespersen, 444 F.3d at 1111 (holding that gender-based 
grooming policy did not constitute “ [i]mpermissible sex 
stereotyping” in part because comparable grooming 
requirements applied equally to all employees, “male 
and female”). And although the complaint alleged that 
black individuals wear dreadlocks more often than 
persons of other racial groups, that assertion makes 
more sense in the context of a disparate-impact claim, 
which considers whether one group of people is 
disproportionately affected by a facially-neutral policy. 
But that theory of Title VII liability is not at issue 
here because the EEOC declined to pursue it.

* * * * *

The EEOC brought this case on behalf of Ms. Jones 
in the hopes that we would do what neither it (through 
its rulemaking authority), nor Congress, nor any other 
court has done: update the meaning of race in Title VII 
to reflect its increasingly nebulous (and disputed) 
boundaries. But there is no legal or factual agreement 
on where those boundaries lie, and Judge Martin and 
the EEOC do not pretend otherwise. Debates rage in 
the academy (as well as in society) over whether race 
is biological, cultural, consensus-based, or some or 
none of the above; over who gets to make the call



59a

about the meaning of race; and over how concepts 
associated with race (including cultural traits) are 
treated. See Catastrophe Mgmt., 852 F.3d at 1033-34 
(collecting some of the literature). There is even 
disagreement over whether dreadlocks are exclusively 
(or even primarily) of African descent. See BERT 
ASHE, TWISTED: MY DREADLOCK CHRONICLES 
36 (2015) (“The first written evidence of dreadlocks is 
in the Vedic scriptures, which are of Indian origin[,] .
. . [and] were developed and written about 2,500 years 
ago[.]”).

As far as I can tell, the position advocated by the 
EEOC could reduce the concept of race in Title VII to 
little more than subjective notions of cultural 
appropriation. See Initial Br. of EEOC at 35-37 
(arguing that Title VII shields symbols of racial pride, 
as defined by the user). Perhaps this view reflects the 
future of Title VII, but if so, Congress is the proper 
entity through which to effect such significant change.

For the time being, we are left with Supreme Court 
precedent explaining that discrimination based on 
stereotypes is circum stantial evidence of 
discrimination on the basis of a protected category, 
and with circuit precedent telling us that protected 
categories and characteristics must be immutable. 
Those two lines of authority, in my opinion, are not 
mutually exclusive.



60a

MARTIN, Circuit Judge, with whom ROSENBAUM 
and JILL PRYOR, Circuit Judges join, dissenting from 
the denial of rehearing en banc:

Chastity Jones, a black woman, applied for a 
position at Catastrophe Management Solutions 
(“CMS”). She got the job. But after she was hired, the 
human resources manager—who is white—told Ms. 
Jones the company had to rescind its job offer because 
she wore her hair in dreadlocks. The manager told 
Ms. Jones the problem with dreadlocks is “they tend to 
get messy,” but at the same time recognized that Ms. 
Jones’s own dreadlocks were not messy. Even so, CMS 
took away Ms. Jones’s job offer because her hair 
violated the company’s blanket ban on dreadlocks.

The Equal Employment Opportunity Commission 
(“EEOC”) filed suit against CMS on behalf of Ms. 
Jones. The complaint alleged that CMS discriminated 
against Ms. Jones on the basis of her race, in violation 
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 
2000e-2. The complaint alleged that dreadlocks are 
black hair in its natural, unmanipulated state, and 
that the natural texture of black hair carries with it a 
deeply entrenched racial stereotype that sees black 
people as “unprofessional,” “extreme,” and “not neat.” 
The complaint also alleged that CMS’s stated reason 
for banning dreadlocks—-“they tend to get messy”—did 
not apply to Ms. Jones, as the human resources 
manager acknowledged Ms. Jones’s hair was not 
messy. Thus, the complaint indicated that CMS’s only 
reason for refusing to hire Ms. Jones was the false 
racial stereotype.



61a

Even with these clear allegations of racial 
discrimination, the District Court dismissed this action 
based on the pleadings alone. See Equal Emp’t 
Opportunity Comm’nv. Catastrophe Mgmt. Sols., 852 
F.3d 1018, 1021 (11th Cir. 2016). This means, of 
course, that the courthouse doors were closed to Ms. 
Jones without either she or CMS having any 
opportunity for factual exploration or development of 
her claims. On this limited record, then, a panel of this 
Court affirmed. And now, despite the startling nature 
of the precedent created by the panel opinion, a 
majority of this Court has voted not to rehear the case 
en banc. I dissent from that decision.

The panel held that the complaint failed to state a 
claim because Title VII prohibits only discrimination 
based on “immutable traits” and dreadlocks are not 
“an immutable characteristic of black persons.” Id  at 
1021. The panel said our decision in Willingham v. 
Macon Tel. Publ’g Co., 507 F.2d 1084 (5th Cir. 1975) 
(en banc),1 dictates this conclusion. See Catastrophe 
Mgmt., 852 F.3d at 1028—30. I cannot agree. By 
r e s t in g  its  d e c i s i o n  on W i l l i n g h a m ’ s 
mutable/immutable distinction, the panel revives—in 
fact, expands—a doctrine the Supreme Court 
invalidated more than twenty-five years ago in Price 
Waterhouse v. Hopkins, 490 1228, 109 S. Ct. 1775 
(1989). Even if Willingham’s immutable-trait 
requirement survived Price Waterhouse, the

1 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 
1981) (en banc), we adopted as binding precedent all decisions of 
the former Fifth Circuit handed down before October 1, 1981. IcL 
at 1209.



62a

allegations the EEOC made here on behalf of Ms. 
Jones are sufficient to satisfy that requirement and 
state a Title VII disparate treatment claim.

I. BACKGROUND

In May 2010, Ms. Jones applied to be a customer 
service representative at CMS, a claims-processing 
company in Mobile, Alabama. Catastrophe Mgmt, 
852 F.3d at 1021. The position did not involve any in- 
person contact with customers. It called for speaking 
with customers only over the phone, from a large call 
center. IcL Ms. Jones was selected for an in-person 
interview. IcL She arrived at CMS a few days later 
dressed in a business suit. IcL She wore her hair in 
short dreadlocks. Id.

First, Ms. Jones interviewed one-on-one with a 
CMS “trainer.” The trainer made no mention of her 
hair, nor did any other CMS employee who saw Ms 
Jones. After her interview, CMS’s human resources 
manager Jeannie Wilson, a white woman, informed 
Ms. Jones and a number of other applicants they had 
been hired. IcL Ms. Wilson explained that they would 
need to complete scheduled lab tests and paperwork 
before beginning employment. IcL Ms. Wilson offered 
to meet privately with anyone who had a conflict with 
the time set for the tests. IcL

After the group meeting, Ms. Jones met privately 
with Ms. Wilson to talk about a scheduling conflict and 
request a different date for her lab tests. Id. Ms. Wilson 
told Ms. Jones she could come back to complete the lab 
work at another time. IcL

Ms. Jones was about to leave when Ms. Wilson 
asked her whether her hair was in “dreadlocks.” Id.



63a

Ms. Jones said yes, and Ms. Wilson replied that CMS 
could not hire her with dreadlocks. IcL When Ms. 
Jones asked why her dreadlocks would be a problem, 
Ms. Wilson said: “ [T]hey tend to get messy, although 
I’m not saying yours are, but you know what I’m 
talking about.” IcL Ms. Jones then told Ms. Wilson she 
would not cut her hair off. IdL at 1022. Ms. Wilson 
responded that CMS could no longer hire her. IcL

At the time, CMS had a written policy that said: 
“All personnel are expected to be dressed and groomed 
in a manner that projects a professional and 
businesslike image while adhering to company and 
industry standards and/or guidelines. . . . [Hjairstyle 
should reflect a business/professional image. No 
excessive hairstyles or unusual colors are 
acceptable [.]” IcL It had no formal, written policy about 
dreadlocks. Judge Jordan says CMS “does not hire 
anyone, black or white, who uses an ‘excessive 
hairstyle [],’ a category that includes dreadlocks.” This 
is surmise on Judge Jordan’s part. Because Ms. Jones’s 
case was dismissed based on the face of her pleadings, 
the record before this Court is devoid of any evidence 
about how CMS has ever applied its hair policy to 
anyone who is not black.

II. DISCUSSION

The panel concluded that our previous decision in 
Willingham required it to affirm the dismissal of Ms. 
Jones’s disparate treatment claim. See Catastrophe 
Mgmt., 852 F.3d at 1028-30. Willingham addressed 
an employer policy that required male employees to 
keep their hair shorter than shoulder length but 
allowed female employees to wear their hair any 
length. 507 F.2d at 1087-88. The employer adopted



64a

the requirement to avoid the association between “long 
hair on men [and] the counter-culture types.” IcL at 
1087. The plaintiff was a man who had been denied a 
position because his hair was too long. IcL He brought 
a Title VII claim alleging that this policy 
discriminated on the basis of his sex. IcL at 1086. The 
former Fifth Circuit rejected his claim. It “adopt[ed] 
the view . . . that distinctions in employment practices 
between men and women on the basis of something 
other than immutable or protected characteristics do 
not inhibit employment opportunity in violation of 
[Title VII].” Id. at 1092. Because “ [h]air length is not 
immutable,” the Willingham court reasoned, the 
plaintiff had no claim. 1M at 1091-92.

The panel in Ms. Jones’s case reads Willingham to 
establish a general rule that Title VII protects against 
discrimination only if that “discrimination [is] based 
on immutable characteristics.” Catastrophe MgmL, 
852 F.3d at 1028. Her panel then applied this 
“immutable/mutable distinction” to the EEOC’s 
complaint. IcL at 1030. Because the “complaint did not 
allege that dreadlocks are an immutable characteristic 
of black persons,” the panel reasoned, the complaint 
failed to state a claim under Title VII. IcL at 1022; see 
also id. at 1030. In reaching this conclusion, the panel 
decided that dreadlocks are merely a “cultural 
practice[ ],” idL at 1030, and are not “beyond the 
[plaintiffs] power to alter.” IcL at 1029 (quoting Garcia 
v. Gloor, 618 F.2d 264, 269 (5th Cir. 1980)). So, since 
Ms. Jones could “alter” her dreadlocks, she failed to get 
past Willingham’s “immutable characteristic 
limitation.” Id.



65a

A.

Willingham’s immutable-trait requirement is no 
longer good law, and Ms. Jones’s panel was wrong to 
invoke it. The Supreme Court’s 1989 decision in Price 
Waterhouse made clear that Title VII’s prohibition 
against discrimination on the basis of a statutorily 
protected class is not limited to protecting only those 
characteristics of the class that may be deemed 
“immutable.” Because Price Waterhouse undermined 
Willingham’s immutable-trait requirement “to the 
point of abrogation,” the panel should not have relied 
on it to dismiss Ms. Jones’s claim. See Chambers v. 
Thompson, 150 F.3d 1324, 1326 (11th Cir. 1998).

Price Waterhouse addressed sex discrimination. 
Ann Hopkins alleged that her employer, the 
accounting firm Price Waterhouse, refused to allow her 
to become a partner in the firm because her gender 
presentation defied the firm’s view of how a woman 
should look and act. One partner described her as 
“macho.” Price Waterhouse, 490 U.S. at 235, 109 S. Ct. 
at 1782 (plurality opinion). Another advised her to 
take “a course at charm school.” IcL But the “coup de 
grace,” to use the Supreme Court’s term, came from a 
partner who told Ms. Hopkins she needed to “walk 
more femininely, talk more femininely, dress more 
femininely, wear make-up, have her hair styled, and 
wear jewelry.” IT (emphasis omitted).

The Supreme Court held that these comments 
showed Price Waterhouse discriminated against Ms. 
Hopkins on the basis of her sex in violation of Title



66a

VII.2 Id. at 250-51, 109 S. Ct. at 1790-91; icL at 
258-61, 109 S. Ct. 1795-96 (White, J., concurring); id. 
at 272-73, 109 S. Ct. 1802-03 (O’Connor, J., 
concurring). None of the traits the employer identified 
as its reasons for not promoting Ms. Hopkins were 
immutable. Nonetheless, the Supreme Court held that 
discrimination on the basis of these traits, which Ms. 
Hopkins could but did not change, constituted sex 
discrim ination. The Court explained that 
discrimination on the basis of these mutable 
characteristics—how a woman talks, dresses, or styles 
her hair—showed discrimination on the basis of sex. 
In asking Ms. Hopkins to make these aspects of her 
“deportment” more feminine, Price Waterhouse 
required her to conform to “the stereotype associated 
with” her sex. Id. at 251, 256, 109 S. Ct. at 1791, 1794. 
The Supreme Court declared:

[W]e are beyond the day when an employer 
could evaluate employees by assuming or 
insisting that they matched the stereotype 
associated with their group, for in 
forbidding employers to discriminate 
against individuals because of their sex,

2 Although there was no majority opinion in Price 
Waterhouse. I refer to this as the holding of the Court because it 
was the opinion of the four-justice plurality decision, and neither 
Justice White nor Justice O’Connor, each of whom concurred in 
the judgment, had any quarrel with it. See Marks v. United 
States, 430 U.S. 188, 193, 97 S. Ct. 990, 993 (1977) (“When a 
fragmented Court decides a case and no single rationale 
explaining the result enjoys the assent of five Justices, the 
holding of the Court may be viewed as that position taken by 
those Members who concurred in the judgments on the narrowest 
grounds.” (quotation omitted and alteration adopted)).



67a

Congress intended to strike at the entire 
spectrum of disparate treatment of men 
and women resulting from sex stereotypes.

Id. at 251, 109 S. Ct. at 1791 (quotation omitted 
and alteration adopted). Since this declaration from 
the Supreme Court, our Court has repeatedly 
recognized that “discrimination on the basis of gender 
stereotype is sex-based discrimination.” Glenn v. 
Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011); see 
Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1254 (11th 
Cir. 2017) (same); see also Equal Emp’t Opportunity 
Comm’n v. Boh Bros. Const. Co., 731 F.3d 444, 454 & 
n.4 (5th Cir. 2013) (collecting cases of the other circuits 
stating the same conclusion).

The lesson of Price Waterhouse is clear. An 
employment decision based on a stereotype associated 
with the employee’s protected class may be disparate 
treatment under Title VII even when the stereotyped 
trait is not an “immutable” biological characteristic of 
the employee. As this Court has recognized, “Title VII 
barfs] not just discrimination because of biological sex, 
but also gender stereotyping—failing to act and appear 
according to expectations defined by gender.” Glenn, 
663 F.3d at 1316 (emphasis added); see also Evans, 
850 F.3d at 1260 (William Pryor, J., concurring) 
(stating that Price Waterhouse “concerned claims that 
an employee’s behavior . . . deviated from a gender 
stereotype held by an employer” and that “ [t]he 
doctrine of gender nonconformity is, and always has 
been, behavior based”).

Thus, after Price Waterhouse, Title VII’s 
protections clearly extend beyond Willingham’s 
requirement that a plaintiff show discrimination based



68a

on an immutable trait. In Willingham, the plaintiff, 
who was denied employment solely because he did not 
have the short haircut required of male employees, 
argued that “since short hair is stereotypically male, 
requiring it of all male applicants violates [Title VII].” 
507 F.2d at 1089. Mr. Willingham raised the gender­
stereotyping argument, so the court necessarily and 
expressly considered whether “sexual stereotypes 
violate [Title VII].” IcL at 1090. Our court concluded 
they do not. See id. at 1092-93. In rejecting the 
gender-stereotyping theory of liability, the Willingham 
court held that the “objective” of “eliminating sexual 
stereotypes . . . .  may not be read into the Civil Rights 
Act of 1964 without further Congressional action.” Id. 
at 1092. “Congress,” the court reasoned, “did not 
intend for its proscription of sexual discrimination to 
have [such] significant and sweeping implications.” Id. 
at 1090. But of course this is precisely what the 
Supreme Court in Price Waterhouse told us Congress 
intended. See Price Waterhouse, 490 U.S. at 251, 109 
S. Ct. at 1791 (“Congress intended to strike at the 
entire spectrum of disparate treatment of men and 
women resulting from sex stereotypes.”). 
Commentators have long noted that this Court’s 
decision in Willingham “predate[s] the Supreme 
Court’s more expansive prohibitions of sexual 
stereotyping [in Price Waterhouse] and thus relied on 
reasoning that is no longer good law.” Mary Anne C. 
Case, Disaggregating Gender from Sex and Sexual 
Orientation: The Effeminate Man in the Law and 
Feminist Jurisprudence, 105 Yale L.J. 1, 61 (1995); see 
also Robert Post, Prejudicial Appearances: The Logic 
of American Antidiscrimination Law, 88 Cal. L. Rev. 
1, 35—36 & n.166 (2000) (explaining that in the face of



69a

Price Waterhouse, Willingham and other cases 
upholding sex-differentiated grooming codes present a 
“spectacle of preposterous doctrinal formulations”).

When a “direct[ ] conflict” like this arises 
between our prior precedent and a later decision of the 
Supreme Court, it is our obligation to leave our 
precedent behind and respect the Supreme Court’s 
pronouncement. See United States v. White, 837 F.3d 
1225, 1230—31 (llthC ir. 2016) (per curiam) (quotation 
omitted); see also Davis v. Singletary, 119 F.3d 1471, 
1482 (11th Cir. 1997) (“To the extent of any 
inconsistency between our [earlier] pronouncements 
and the Supreme Court’s supervening ones, of course, 
we are required to heed those of the Supreme Court.”). 
By applying Willingham to dismiss Ms. Jones’s case, 
our Court has shirked its obligation.

B.

Beyond that, when the panel relied on 
Willingham’s invalid immutable-trait requirement, it 
did not reach the wrong result for only Ms. Jones. 
Sadly, it takes our entire Title VII disparate-treatment 
jurisprudence down a misguided path. Since Price 
Waterhouse, this Court had applied Willingham only 
one time. That was to uphold a sex-differentiated hair- 
length policy that was indistinguishable from the one 
at issue in Willingham. See Harper v. Blockbuster 
Entm’t Corn., 139 F.3d 1385, 1387 (11th Cir. 1998).3

3 In Harper, this Court disposed of the plaintiffs’ claim in 
one sentence, saying it was “squarely foreclose [d]” by Willingham. 
Harper, 139 F.3d at 1387. There was no mention of Price 
Waterhouse.



70a

Other than Harper, this Court has completely avoided 
Willingham’s immutable-trait requirement. The rarity 
with which we have invoked the Willingham 
requirement after Price Waterhouse suggests that— 
until now—our Court understood its requirement was 
no longer sound.4

The panel decision thus resurrects what had 
been, for good reason, a dead letter in this circuit. And 
it does so in very broad terms. Instead of limiting the 
immutable-trait requirement to cases involving 
grooming policies, the opinion appears to hold that the 
“immutable characteristic limitation” applies to all 
Title VII disparate treatment claims. Catastrophe 
Mgmt., 852 F.3d at 1029; see, e.g., id. at 1021 (“ [0]ur 
precedent holds that Title VII prohibits discrimination 
based on immutable traits . . . .”); ich at 1028 (“Title 
VII protects against discrimination based on

4 The decision in Glenn also makes clear this Court had 
rejected the immutable-trait requirement. In Glenn we held that 
“discrimination against a transgender individual because of her 
gender-nonconformity is sex discrimination.” Glenn, 663 F.3d at 
1317. This result, we explained, was compelled by Price 
Waterhouse. Id. at 1316—17. Glenn’s holding is a stark 
repudiation of the immutable-trait requirement. When an 
employer takes an adverse action against a transgender employee 
because of the employee’s gender nonconformity, the employer is 
not discriminating based on an immutable characteristic of sex. 
To the contrary, the employer has discriminated against the 
employee because the employee’s appearance flouts the perceived 
immutability of sexual characteristics. See id. at 1316 (“A person 
is defined as transgender precisely because of the perception that 
his or her behavior transgresses gender stereotypes.”). We have 
therefore recognized that the very act of changing one s 
appearance can be the basis of an employment discrimination 
claim.



71a

immutable characteristics.”); kb at 1030 (“Title VII 
protects persons in covered categories with respect to 
their immutable characteristics, but not their cultural 
practices.”). To the extent the panel opinion revives the 
immutable-trait requirement for sex discrimination 
claims, it directly contradicts our post-Price 
Waterhouse precedent recognizing sex discrimination 
claims based on gender nonconformity. See Evans, 
850 F.3d at 1254 (“Discrimination based on failure to 
conform to a gender stereotype is sex-based 
discrimination.”); Glenn, 663 F.3d at 1316 (same). 
After all, the crux of every gender-nonconformity claim 
is that the way an employee chooses to present her 
gender, through any number of mutable 
characteristics, is protected by Title VII.

My reading of the panel opinion tells me that the 
panel not only resurrects this damaging immutable- 
trait requirement, it expands that requirement. It does 
so by applying the doctrine to disparate treatment 
claims alleging race discrimination. Before Ms. Jones’s 
panel opinion, this Court had never applied 
Willingham’s immutable-trait requirement to a race- 
based disparate treatment claim. Now, the panel has 
extended the doctrine to race claims, which pushes the 
invalid doctrine into a whole new category of Title VII 
claims. Willingham mentioned race only once. It said 
that “race” itself is an “immutable characteristic [ ]” 
and therefore protected under Title VII. 507 F.2d at 
1091 (“Equal employment opportunity may be secured 
only when employers are barred from discriminating 
against employees on the basis of immutable 
characteristics, such as race and national origin.”). In 
other words, Willingham used the concept of 
immutability to identify race as a characteristic that is



72a

a prohibited basis for employer decision-making, 
Willingham never said anything about using 
immutability against a racial group to exclude certain 
features of racial identity from statutory protection.0 
See Camille Gear Rich, Performing Racial and Ethnic 
Identity: Discrimination by Proxy and the Future of 
Title VII, 79 N.Y.U. L. Rev. 1134, 1216, 1220 (2004) 
(recognizing this flaw in the extension of the 
“immutability construct” to claims of race 
discrimination).

It isn’t hard to see why an immutable-trait 
requirement has no place in the race-discrimination 
context. The doctrine presumes that there are 
immutable, or naturally-occurring physical differences 
between racial groups. This, even though both the 
academy and the courts have long rejected the notion 
that racial divisions are based on biological 
differences. See Ian F. Haney Lopez, The Social 
Construction of Race: Some Observations on Illusion, 
Fabrication, and Choice, 29 Harv. C.R.-C.L. L. Rev. 1, 
11-20 (1994) (collecting sources and explaining that 
!‘[t]he rejection of race in science is now almost 
complete”). Summarizing the findings of “ [mjany

5 In Garcia, the former Fifth Circuit applied the 
immutable-trait requirement to a claim of national-origin 
discrimination, upholding an employer’s English-only policy. See 
618 F.2d at 270. But the court said nothing about applying the 
requirement in the context of race discrimination. Rather, as far 
as race is concerned, Garcia made only the same point as 
Willingham—that the racial classifications themselves are 
immutable and therefore protected. See Garcia, 618 F.2d at 269 
(“No one can change his place of birth (national origin), the place 
of birth of his forebears (national origin), his race or fundamental 
sexual chai'acteristics.”).



73a

modem biologists and anthropologists,” the Supreme 
Court told us three decades ago:

Clear-cut [racial] categories do not exist.
The particular traits which have generally 
been chosen to characterize races have 
been criticized as having little biological 
significance. It has been found that 
differences between individuals of the same 
race are often greater than the differences 
between the “average” individuals of 
different races.

Saint Francis Coll, v. Al-Khazraji, 481 U.S. 604, 610 
n.4, 107 S. Ct. 2022, 2026 n.4 (1987).

The supposed distinction between an
“immutable” racial trait and a “mutable” one is 
illusory. Is the color of an employee’s hair an 
immutable trait? What about the shape of an 
employee’s nose? It seems to me that employers could 
use the panel’s rule to argue that any case in which 
the employer hasn’t overtly discriminated on the basis 
of skin color itself falls outside of Title VII’s 
protections. And even that may be questionable, 
because with modern medicine skin color can be 
changed too. See Margaret L. Hunter, Buying Racial 
Capital: Skin-bleaching and Cosmetic Surgery in a 
Globalized World, 4 J. Pan Afr. Studies 4, 142-64 
(2011).

The panel opinion itself shows us that the notion 
of an “immutable” racial characteristic is fiction. In an 
effort to give lower courts an example of “the 
distinction between immutable and mutable 
characteristics of race,” the panel draws a bright line



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between dreadlocks and an Afro. Catastrophe Mgmt., 
852 F.3d at 1030. The panel actually says that while 
dreadlocks, a “black hairstyle,” is a “mutable choice” 
and therefore not protected, an Afro, “black hair 
texture,” is an “immutable characteristic” and is 
therefore protected. Id. This distinction is nonsense. If 
an immutable trait is something that is “beyond the 
[plaintiff]’s power to alter,” id. at 1029 (quotation 
omitted), then neither dreadlocks nor Afros are 
immutable traits of black people. Like any hair style, 
both can be altered.

In fact, the very case the panel relies on for the 
proposition that Afros are an immutable characteristic, 
Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 
538 F.2d 164 (7th Cir. 1976) (en banc), disproves the 
point. See Catastrophe Mgmt., 852 F.3d at 1030 
(citing Jenkins, 538 F.2d at 168). In Jenkins, the 
Seventh Circuit held that a black employee’s allegation 
that she was denied a promotion because she wore her 
hair in an Afro stated a Title VII claim for race 
discrimination. 538 F.2d at 168. But contrary to Ms. 
Jones’s panel’s assertion that an Afro constitutes “an 
immutable characteristic,” Catastrophe Mgmt., 852 
F.3d at 1030, the Jenkins decision actually highlights 
the mutability of an Afro. In Jenkins, the plaintiff 
made the choice to style her hair in an Afro after years 
of wearing her hair differently. 538 F.2d at 167. The 
plaintiff affirmatively alleged that she worked for her 
employer for three years with “no problem until May 
1970 when I got my natural hair style.” IcL at 167; see 
also id. at 168-69 (repeatedly describing the plaintiffs 
Afro as a “hairstyle”). The Seventh Circuit concluded 
that an allegation of discrimination based on a black 
employee’s Afro stated a claim under Title VII not



75a

because an Afro is an immutable characteristic of 
black people, but instead because singling the plaintiff 
out on account of her “Afro hairstyle was merely the 
method by which the plaintiffs supervisor [] expressed 
the employer’s racial discrimination.” IcL at 168.

The discriminatory animus that motivates an 
em ployer to ban dreadlocks offends the 
antidiscrimination principle embodied in Title VII just 
as much as the discriminatory animus motivating a 
ban on Afros. Both are distinctly African-American 
racial traits. So, when an employer refuses to hire or 
promote a black employee on the basis of one of those 
traits, there is a strong indication that the employee’s 
race motivated the decision. In other words, when an 
aspect of a person’s appearance marks her as a 
member of a protected class and her employer then 
cites that racial marker as the reason for taking action 
against her, the employee’s race probably had 
something to do with it. Whether that racialized 
aspect of her appearance is “immutable” such as skin 
color or “mutable” such as hair is beside the point. 
Either way, the employer’s action based on a racial 
identifier is an action based on the employee’s race.

In order to faithfully apply Title VII’s ban on 
racial discrimination, courts must identify 
discriminatory intent in all its disguises. That is why 
we instruct district courts to look for “circumstantial 
evidence . . .  [of] the employer’s discriminatory intent,” 
however that intent may manifest. Smith v. Lockheed- 
Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011); 
see also Ash v. Tyson Foods, Inc., 546 U.S. 454, 456, 
126 S. Ct. 1195, 1197 (2006) (per curiam) (holding that 
even a facially race-neutral remark may be “probative



76a

of bias,” “depending] on various factors including 
context, inflection, tone of voice, local custom, and 
historical usage”). Yet the panel opinion forces courts 
in Alabama, Florida, and Georgia to close their eyes to 
compelling evidence of discriminatory intent. This flies 
in the face of the broad mandate courts have been 
given in disparate treatment cases.

In concluding this debate between two appeals 
court judges, neither of us African American, about 
what is an immutable characteristic of African 
American hair, the ironies are not lost on me. Ms. 
Jones is not going to be impacted much by which view 
ultimately prevails in what Judge Jordan refers to as 
the “ [djebates [that] rage in the academy (as well as in 
society) over whether race is biological, cultural 
consensus-based, or some or none of the above.” Ms. 
Jones’s complaint plainly sets out facts that plausibly 
support her claim that CMS withdrew her job offer 
based on a marker of her race. As you’ve read, Judge 
Jordan himself recognizes that there is “no legal or 
factual agreement” about the relationship between a 
person’s hair style and her race. That being the case, 
Ms. Jones had every reason to come into federal court, 
seeking to have a jury instructed on the law that 
governs this dispute, and then decide these facts about 
which we cannot agree. Ms. Jones should have had 
that opportunity.

C.

In the ways I have set out, the panel went astray 
when it invoked Willingham’s immutable-trait 
requirement to dismiss the EEOC’s complaint. I will 
now review how the EEOC’s allegations should have 
been analyzed. Once we put aside the no-longer valid



77a

immutable-trait requirement and instead analyze the 
complaint under the stereotyping doctrine from Price 
Waterhouse, the complaint easily sets out a plausible 
claim for race-based disparate treatment. It therefore 
should have survived CMS’s motion to dismiss. See 
Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1289 
(11th Cir. 2010) (“ [T]o survive a motion to dismiss, a 
complaint must [ ] contain sufficient factual matter, 
accepted as true, to ‘state a claim to relief that is 
plausible on its face.”’ (quoting Bell Atl. Corp. v, 
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 
(2007)).

Price Waterhouse teaches that, for purposes of 
Title VII, it does not matter whether the trait the 
employer disfavors is mutable or immutable. What 
matters is whether that trait is linked, by stereotype, 
to a protected category. See 490 U.S. at 251, 109 S. Ct. 
at 1791. Price Waterhouse didn’t refuse to promote all 
employees who are women (an “immutable” trait). It 
refused to promote a subset of women: those who failed 
to conform to a stereotype of how a woman should look 
in the workplace. See id. at 235, 109 S. Ct. at 1782 
(“Hopkins [was told she needed to] . . . dress more 
femininely, wear make-up, have her hair styled, and 
wear jewelry.”). CMS’s ban on dreadlocks works the 
same way. The company might not refuse to hire all 
black applicants. Rather, it refuses to hire a subset of 
black applicants: those who, because of their hair, fail 
to conform to a stereotypical notion of how a black 
person should look in the workplace.6

6 This Court’s precedent made clear, nearly a decade before 
Price Waterhouse, that the reach of Title VII “is not to be diluted 
because discrimination adversely affects only a portion of the



78a

The EEOC clearly alleged that dreadlocks are a 
stereotyped trait of African Americans. The complaint 
explains that the perception that dreadlocks are 
“unprofessional” and “not neat” is grounded in a deep- 
seated white cultural association between black hair 
and dirtiness. This perception has origins in slavery 
itself. See Doc. 21-1 H 20 (alleging that the term 
“dreadlock” originated during the slave trade, when 
“slave traders referred to the slaves’ hair as ‘dreadful’” 
because slaves’ hair often “became matted with blood, 
feces, urine, sweat, tears, and dirt” during the 
transatlantic voyage). Thus, the complaint plainly 
asserts, the “assumption” that “dreadlocks inevitably 
will get messy” is “based on stereotyped notions of how 
Black people should and should not wear their hair 
and is premised on a normative standard and 
preference for White hair.”

The EEOC also alleged that CMS relied on this 
racial stereotype when it rescinded Ms. Jones’s job 
offer. To begin, there is certainly daylight between 
CMS’s formal, written grooming policy, which did not 
single out any particular hairstyle, and its informal, 
unwritten ban on dreadlocks. CMS’s written grooming 
policy was race neutral: all employees’ hairstyles must 
“reflect a business/professional image” and must not be 
“excessive.” Yet CMS then decided to interpret this 
race-neutral policy to ban a particular type of 
hairstyle. According to the complaint, the hairstyle 
selected by CMS typically grows “naturally” only in

protected class.” Jefferies v. Harris Cty. Cmty. Action Ass’n, 615 
F.2d 1025,1034 (5th Cir. 1980) (quotation omitted); see id. at 1033 
(“[Djisparate treatment of a subclass of women could constitute a 
violation of Title V II . . . .”).



79a

black people’s hair and not in white people’s. Ms. Jones 
was told that CMS could not hire her with dreadlocks. 
CMS’s ban on dreadlocks therefore appears to be 
categorical, presumably meaning that the company 
views all dreadlocks as “ excessive” and lacking a 
“business[like]/professional image.” As the human 
resources manager, Ms. Wilson, explained to Ms. 
Jones, the problem with dreadlocks is “they tend to get 
messy.” But again, the complaint explained that CMS’s 
“assumption that [ ] dreadlocks inevitably will get 
messy” is grounded in “stereotyped notions” of black 
physical characteristics and a racial preference for 
employees with characteristically white traits. Thus, 
taking the facts alleged in the complaint as true, 
CMS’s stated reason for not hiring Ms. Jones was 
plainly a racial stereotype.

Price Waterhouse tells us that an employer’s 
mere mention of a stereotype related to the employee’s 
protected class does “not inevitably prove that [the 
employee’s protected status] played a part in [the] 
particular employment decision.” 490 U.S. at 251, 109 
S. Ct. at 1791. Instead, the plaintiff has the burden to 
“show that the employer actually relied on her 
[protected class] in making its decision,” and 
“stereotyped remarks can certainly be evidence” of 
that. Id.

Again, this case was decided on the pleadings. 
The EEOC therefore had no obligation to prove that 
CMS reneged on Ms. Jones’s job offer because of her 
race. It only had to allege facts to show this is 
plausible. Twombly, 550 U.S. at 570, 127 S. Ct. at 
1974.1 view the allegations I’ve discussed as sufficient 
to support a plausible claim that CMS relied on Ms.



80a

Jones’s race in deciding to revoke her offer of 
employment. The stereotyping here, like that in Price 
Waterhouse, “did not simply consist of stray remarks” 
by a non-decisionmaker. See 490 U.S. at 251, 109 S. 
Ct. at 1791. The racial stereotype was the express 
reason, indeed the only reason, CMS gave for not 
hiring Ms. Jones. And it came straight from the 
manager who decided not to hire her. See Quigg v. 
Thomas Cty. Sch. Disk, 814 F.3d 1227, 1242 (11th Cir. 
2016) (holding that remarks based on sex stereotypes 
constituted circumstantial evidence of sex 
discrimination sufficient to overcome summary 
judgment where the remarks were made “during 
conversations about” the employment decision; “in 
relative temporal proximity to” the decision; and 
“specifically referjed] to” the company’s preferences).

But the EEOC’s complaint alleged another fact 
that shows, above and beyond plausibility, that CMS 
“actually relied on” Ms. Jones’s race in deciding to 
rescind her offer. See Price Waterhouse, 490 U.S. at 
251, 109 S. Ct. at 1791. Immediately after Ms. Wilson 
gave Ms. Jones the purported nondiscriminatory 
reason for CMS’s dreadlocks ban—“they tend to get 
messy”—she acknowledged that reason did not apply 
to Ms. Jones’s hair: “I’m not saying yours are [messy].” 
CMS thus recognized the distinction between 
dreadlocks that are truly “messy” and dreadlocks that 
aren’t, and demonstrated it can tell the difference 
between the two. Even so, after it acknowledged that 
Ms. Jones’s hair wasn’t messy, CMS enforced the 
dreadlocks ban against her anyway. This did nothing 
to further the nondiscriminatory reason CMS gave for 
the company’s dreadlocks ban. Because CMS openly 
acknowledged that its only nondiscriminatory reason



81a

for the dreadlocks ban did not apply to Ms. Jones, we 
are left with only her race as the basis for its decision 
not to hire her. There is no other explanation for the 
company’s refusal to hire a black applicant whose 
dreadlocks it recognizes do not implicate its one 
nondiscriminatory reason for banning dreadlocks.

D.

I have examined why the panel was wrong to 
apply the immutable-trait requirement and why, 
under Price Waterhouse, the EEOC’s complaint states 
a claim for race discrimination. But even if we were to 
ignore Price Waterhouse and apply Willingham’s 
immutable-trait requirement, the panel still reached 
the wrong result. The complaint clearly alleges that 
dreadlocks are an immutable trait that satisfies the 
Willingham requirement.

The panel says it defines an “immutable” trait as 
one that is “beyond the [plaintiff]’s power to alter,” 
Catastrophe M gm t, 852 F.3d at 1029 (quoting Garcia, 
618 F.2d at 269), so characterizing dreadlocks as 
mutable might sound right. No one disputes that 
dreadlocks can be altered. Indeed, the complaint 
specifically described the “expensive and harsh 
treatments” that many African Americans use to 
“straighten their hair” “ [i]n response to a pervasive 
animus toward the natural texture of Black people’s 
hair.” It also alleged that African Americans “wear 
wigs, hair pieces, or extensions to create an 
appearance that is consistent with Caucasian hair and 
style standards.”

So the question of whether dreadlocks are 
“immutable” for purposes of Willingham depends



82a

entirely on how we define that term. “ [BJeyond the 
[plaintiff]’s power to alter” is certainly the definition 
that supports the panel’s holding that dreadlocks are 
not immutable. IcL However, in order to justify its 
distinction between Afros and dreadlocks, the panel 
uses another definition of the term. Certainly, “beyond 
the [plaintiff]’s power to alter” is not the definition of 
“immutable” that would support holding an Afro to be 
immutable. The same “expensive and harsh 
treatments” that a black person can use to turn 
dreadlocks into Caucasian-looking hair can be used to 
the same effect on an Afro. Thus, the panel turns to 
a different set of definitions of “immutable.” Those 
are: “characteristics [that] are a matter of birth, and 
not culture,” id. at 1027; “inherited physical 
characteristics,” icL; “ [characteristics] that an employee 
is born with,” icL at 1029 n.4; and, a characteristic that 
is not ‘“the product o f . . . artifice,’” idL at 1030 (quoting 
Rogers v. Am. Airlines, Inc., 527 F. Supp. 229, 232 
(S.D.N.Y. 1981)). Taken together, the panel defines 
“immutable” as a trait that is naturally occurring.

Using this definition of “immutable,” the 
complaint certainly alleged the immutability of 
dreadlocks. The complaint said “ [d]readlocks are 
formed in a Black person’s hair naturally, without any 
manipulation.” (Emphasis added.) It also referred to 
dreadlocks as the “natural texture” of black hair and 
“African Americans [’] . . . natural hair.” And it 
explained that “ [generally, the hair of Black people 
naturally grows in very tight coarse coils. In contrast, 
the hair of White people typically grows straight or in 
softly curled patterns.” Finally, the complaint 
described dreadlocks as “physiologically and culturally 
associated with people of African descent.” (Emphasis



83a

added.) If this isn’t enough to allege that dreadlocks 
occur naturally in black people’s hair, I don’t know 
what is.7

The panel evidently believed that an Afro is black 
hair in its natural, unmediated state, while dreadlocks 
are not. But at the motion to dismiss stage, we must 
accept all of the factual allegations in the complaint as 
true. Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S. 
Ct. 2197, 2200 (2007) (per curiam). The panel did not 
do that. In concluding that the EEOC’s complaint “did 
not allege that dreadlocks are an immutable 
characteristic of black persons,” Catastrophe Mgmt., 
852 F.3d at 1022, the panel ignored the plaintiffs well- 
pled allegations that dreadlocks occur “naturally” in a 
black person’s hair. Instead, the panel substituted its 
own notion that the only natural black hair is an Afro.

k  k  k

The appearance of a person’s hair is always 
capable of change—hair can be cut, straightened, 
curled, or covered. The question is whether Title VII 
protects a black employee’s choice to wear her hair in 
its natural state. The panel concedes it does. See id. 
at 1030. That leaves only the question of whether the 
EEOC’s complaint sufficiently alleged that dreadlocks 
are natural hair. It does.

' The complaint also alleged, in the alternative, that “even 
if [dreadlocks] [are] not an immutable characteristic,” they are, 
“[s]imilar to the Afro, . . .  a manner of wearing hair that is 
suitable to the texture of Black hair and that has been worn by 
Black individuals as a cultural symbol.”



84a

III. CONCLUSION

“ [T]he very purpose of [T]itle VII is to promote 
hiring on the basis of job qualifications, rather than on 
the basis of race or color.” Griggs v. Duke Power 
Co., 401 U.S. 424, 434, 91 S. Ct. 849, 855 (1971) 
(quotation omitted). Although instances of open and 
obvious racial discrimination in the workplace still 
exist, intentional discrimination may now take on 
more subtle forms. In many cases an employer’s racial 
preference will be camouflaged by policies that appear 
facially neutral. That is what the EEOC alleged 
happened to Ms. Jones. A ban on “all” applicants with 
dreadlocks is about as race-neutral as a ban on “all” 
applicants with dark-colored skin.

The panel’s conclusion that, as a matter of law, 
a blanket ban on dreadlocks does not violate Title VII’s 
prohibition on disparate treatment is simply wrong. 
And so is the immutable-trait requirement the panel 
used to get there. If Title VII prohibits an employer 
from rescinding a job offer because it perceives a 
female applicant’s appearance to be insufficiently 
feminine (or overly masculine), see Price Waterhouse, 
490 U.S. at 256, 109 S. Ct. at 1794, it must also 
prohibit an employer from rescinding an offer because 
it perceives a black applicant’s appearance to be 
insufficiently white (or overly black). My colleague 
Judge William Pryor recently pointed out that a 
female employee “can state a claim that she 
experienced . . . [sex] discrimination for wearing a 
‘male haircut.’” Evans, 850 F.3d at 1258 (William 
Pryor, J., concurring). By the same logic, a black 
employee like Ms. Jones should be able to state a claim



85a

of race discrimination for wearing her hair in 
dreadlocks— a “black haircut.”

Surely, the viability of Title VII cannot rest on 
judges drawing distinctions between Afros and 
dreadlocks. Yet that is what the panel opinion seems 
to call for. The opinion requires courts and litigants to 
engage in a pseudo-scientific analysis of which racial 
traits occur naturally and which do not. This is not 
how we should be deciding cases of race 
discrimination.

There was a time in our nation’s history when a 
person’s legal status was dictated by whether she was 
white or black. Courts frequently adjudicated the 
physical features that “ [njature has stampt upon the 
African and his descendants.”8 Hudgins v. Wright, 11 
Va. 134, 139 (Va. 1806) (stating that a “woolly head of 
hair” is the “strong[est] [ ] ingredient in the African 
constitution” (emphasis omitted)). Today we count 
those decisions among the most shameful in the 
history of our courts. xAnd, of course, Congress’s 
purpose in passing Title VII was to eliminate one of 
the many stubborn vestiges of that era. Our task, in 
applying that statute today, is to be true to that most 
important goal. The panel opinion is not.

Rather, in holding that certain physical features 
are immutable traits of the different racial groups, this 
Court legitimizes the very categories that Title VII 
was intended to dismantle.

8 See generally Ariela J. Gross, Litigating Whiteness: 
Trials of Racial Determination in the Nineteenth-Century South, 
108 Yale L.J. 109 (1998).



86a

I respectfully dissent.