By Jasmine Benjamin
Associate Editor, Vol. 26
Everyone is faced with the question of how to style their hair. However, this decision is of particular social, professional and economic import for Black women. According to recent studies, Black women are 83% more likely to report being judged more harshly on their looks than other women, 1.5x more likely to be sent home from the workplace because of their hair and 30% more likely to be made aware of a formal workplace appearance policy. For Black women, the choice to wear our natural hair can make us victims of a unique type of discrimination situated at the intersection of our identities as both women and African Americans. This situation is made more difficult because judicial systems have refused to acknowledge this discrimination.
Black women’s natural hair has a long history of being policed and stereotyped as a way to subjugate Black women. Society at large has used hair texture and hairstyle (in conjunction with skin color) to classify individuals on the basis of race, which has been largely reinforced through the legal system. Those classifications in turn perpetuated stereotypes that “equated ‘[B]lackness,’ and the associated physical traits, for example, dark skin, kinky and curly hair to a badge of inferiority,” deserving of separate and unequal treatment. Because of the negative stereotypes and stigma associated with natural hair, Black women’s hairstyles have largely been perceived as unprofessional, unacceptable, and deserving of special regulation. The choice, then, to wear one’s natural hair has professional consequences for Black women. “[R]outinely people of African descent are deprived of … employment opportunities because they are adorned with natural or protective hairstyles in which hair is tightly coiled or tightly curled, or worn in locs, cornrows, twists, braids, Bantu knots, or Afros.” The policing of natural hair had, and continues to have, a distinct racial impact.
Title VII of the Civil Rights Act prohibits discrimination in the workplace on the basis of race. Federal courts have consistently denied applying this protection to hair discrimination, ruling that “when an employer chooses to hire or fire a Black woman for wearing her hair in a braid, twist, plait, cornrow, lock, or blonde, Title VII of the Civil Rights Act … does not apply.” EEOC v. Catastrophe Management Solutions and Rogers v. American Airlines clearly illustrate this shortcoming in legal protections.
In EEOC v. Catastrophe Management Solutions, the Equal Employment Opportunity Commission (EEOC) filed suit claiming that “Catastrophe Management had engaged in race discrimination in violation of Title VII when it rescinded an offer of employment pursuant to its race-neutral grooming policy when the applicant refused to cut off her dreadlocks.” The court rejected this argument, explaining that “‘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.” The difference, the court explained, was that locs fell into the latter category and were not protected, while afros (apparently synonymous with black hair texture) fit in the former category. The immutability doctrine is rooted in a view of race as fixed and biological in nature, a view few would support now. By distinguishing between changeable hairstyles and “immutable” ones, the court demonstrates its ignorance about natural hair and permits a form of racial discrimination that disproportionately impacts Black women.
In Rogers v. American Airlines, the airline created a policy prohibiting women from wearing all-braided hairstyles. In her suit, Rodgers “argued that American Airlines’ grooming regulation constituted race and sex discrimination in violation of Title VII and other civil rights laws.” The court ruled this policy did not create an impermissible racial distinction because braids were not immutable characteristics or “traits with which one is born, [that] are fixed, difficult to change, and /or displayed by individuals who share the same racial identity.” The court reasoned that because a white actress had worn cornrows in a popular Hollywood movie, such a hairstyle was not immutable because “they were not an inevitable physical feature of African ancestry.”
In a prominent display of ignorance, the court based its holding on a white woman and its assumption that Rodgers could simply change her hair back and forth to comply with the work policy and enjoy her personal preference for braided styles. 
Similar to Catastrophe Management, the court embraced the immutability requirement, which ignores the “nuanced nature of the racialization process, whereby the conceptualization of ‘race includes physical appearances and behaviors that society, historically and presently, commonly associates with a particular racial group, even when the physical appearances and behaviors are not ‘uniquely’ or ‘exclusively’ ‘performed’ by, or attributed to a particular racial group.’.” Ultimately, the justifications underpinning the court’s decisions to limit Title VII protections to afros only perpetuate the subjugation of Black women and endorse the stereotype that Black natural hair is inferior or unacceptable.
Until recently, Black women had no remedy for the hair-discrimination they faced. However, there has been a recent legislative push to address this gap. Creating a Respectful and Open World for Natural Hair (CROWN) Act is a campaign started in 2019 by Dove and the CROWN Coalition to “ensure protections against discrimination based on race-based hairstyles by extending statutory protection to hair texture and protective styles such as braids, locs, twists, and knots in the workplace and public schools.” Versions of the CROWN Act have been passed in seven states and the US House of Representatives. Hopefully these steps in the right direction will continue to build momentum toward filling in the gap in anti-discrimination protections.
 Joy Collective, The CROWN Research Study, Dove (2019), https://static1.squarespace.com/static/5edc69fd622c36173f56651f/t/5edeaaa09a3c4b1e68d153af/1591650978262/DOVE_2019HAIR_reseach.pdf.
 “Natural hair is recognized as any style worn in one’s hair, absent chemical alteration or modification. Natural hair ranges from one’s natural hair coloring to one’s native curl patterns or lack thereof.” Meah Johnson, I Am Not My Hair: Natural Hair Discrimination in Corporate America, 11 S. Univ. Law Ctr. J. Race Gender & Poverty 109, 113 (2019-2020).
 CROWN Act, H.R.5309, 116th Cong. (2020).
 S.B. 188 (Cal. 2019); See Hudgins v. Wright, 11 Va. (1 Hen. & Mun.) 134 (1806) (discussing how “…a flat nose and wooly head of hair” were unmistakable characteristics of people descended from slaves and these features placed a presumption of enslaved status on the bearer); Crystal Powell, Bias, Employment Discrimination, and Black Women’s Hair: Another Way Forward, 2018 BYU L. Rev. 933, 940 (2018) (remarking that “… hair was and is the primary identifier or more definitive identifier of race, even above skin color”).
 Two examples highlight this. First, “… the first female millionaire in the United States made her fortune from the Black Hair industry in products designed to straighten the texture of Black hair. Products were marketed on a philosophy of ‘cleanliness and loveliness.” Powell, supra note 4, at 943. Second, “[n]ew research suggests Black women with natural hairstyles, such as curly afros, braids or twists, are often perceived as less professional than Black women with straightened hair, particularly in industries where norms dictate a more conservative appearance.” Research Suggests Bias Against Natural Hair Limits Job Opportunities for Black Women, Duke Fuqua Sch. Bus. (Aug. 12, 2020), https://www.fuqua.duke.edu/duke-fuqua-insights/ashleigh-rosette-research-suggests-bias-against-natural-hair-limits-job [hereinafter Research Suggests Bias].
 Alternatively, choosing to conform to the dominant culture’s standards of acceptability bears financial and health consequences as “[s]ome straightening processes can cost hundreds to thousands of dollars and can cause hair breakage, scalp disease and other health complications…” Research Suggests Bias, supra note 5; Amber Taylor, CROWN Act: My Hair is Beautiful, Professional, and Acceptable, ACLU Md. (Feb. 26, 2020), https://www.aclu-md.org/en/news/crown-act-my-hair-beautiful-professional-and-acceptable (“A recent study by the American Journal of Epidemiology determined that the use of hair relaxers may be linked to uterine fibroids in Black women and girls, a condition that is estimated to affect 80% of Black women over their lifetime.”).
 CROWN Act, H.R.5309, 116th Cong. (2020) (“…, as recently as 2018, the United States Armed Forces had grooming policies that barred natural or protective hairstyles that servicewomen of African descent commonly wear and that described these hairstyles as ‘unkempt.”).
 42 U.S.C. §2000e (1965)
 D. Wendy Greene, Splitting Hairs: The Eleventh Circuit’s Take on Workplace Bans against Black Women’s Natural Hair in EEOC v. Catastrophe Management Solutions, 71 U. Miami L. Rev. 987, 991 (2017).
 Powell, supra note 4, at 939 (citing Rogers v. Am. Airlines, Inc., 527 F. Supp. 229, 232-33 (S.D.N.Y. 1981)).
 EEOC v. Catastrophe Mgmt. Sols., 852 F.3d 1018 (11th Cir. 2016); Rogers, 527 F.Supp. 229.
 Powell, supra note 4, at 934.
 Greene, supra note 9, at 1022.
 See Vivian Chou, How Science and Genetics are Reshaping the Race Debate of the 21st Century, Harv. U. Graduate Sch. Arts Sci. (Apr. 17, 2017), https://sitn.hms.harvard.edu/flash/2017/science-genetics-reshaping-race-debate-21st-century/ (“‘Race’ cannot be biologically defined due to genetic variation among human individuals and populations.”).
 Locs can, in fact, form without manipulation, which pushes strongly against the idea that they are solely a hairstyle choice, but can in fact be a result purely of hair texture. See Michelle Darrisaw, Everything You Ever Wanted to Know About Free-Form Locs, Essence (Feb. 22, 2018), https://www.essence.com/hair/hairfree-form-locs-natural-hair-guide/.
 The plaintiff’s last name was misspelled in the case. Greene, supra note 9, at 997 n. 47.
 Greene, supra note 9, at 997-98.
 Id. (citing Rogers, 527 F. Supp. at 231).
 Id. (“the court reasoned that Rodgers was unable to satisfy this essentialist (and essentially impossible) prima facie requirement since Bo Derrek, a white actress, donned cornrows in the movie ’10’”).
 Id. at 999.
 Braided and cornrowed hairstyles can take hours to install and remove. Renee Henson, Are My Cornrows Unprofessional: Title VII’s Narrow Application of Grooming Policies, and Its Effect on Black Women’s Natural Hair in the Workplace, 1 Bus. Entrepreneurship & Tax L. Rev. 521, 528 (2017) (“the court reminded Renee that she is free to do what she wants on her own time with her hair.’ The court-s suggestion that Renee can simply switch back and forth between cornrows and her natural hair between work shifts and after work hours sheds light on its lack of knowledge regarding black women’s hair”).
 D. Wendy Greene, A Multidimensional Analysis of What Not to Wear in the Workplace: Hijabs and Natural Hair, 8 FIU L. Rev. 333, 356 (2013).
 Jacqueline Laurean Yates, National Crown Day: 7 States Have Passed Laws to Ban Natural Hair Discrimination, Good Morning Am. (Jul. 2, 2020), https://www.goodmorningamerica.com/style/story/national-crown-day-states-passed-laws-ban-natural-71574191; CROWN Act, H.R.5309, 116th Cong. (2020).