Howe on Earth

I am an unapologetic advocate for natural black hair and I believe all of us should be too. When I say, “natural black hair,” I am referring to hair of women or men of African descent in its natural state, ie, without chemical relaxers or perms. I am also referring to protective styling such as dreadlocks, braids, canerows/cornrows, etc. I am talking about natural black hair without wigs, weaves or any type of hair that mimics, or actually is, the texture of another race.

In the grand scheme of everything happening in the world right now concerning the oppression and harming of black people, natural black hair discrimination may not seem relevant or important, however it is – and the reasons why we may deem natural black hair unimportant or irrelevant, are exactly why I advocate for black hair. Black hair is not just hair. Black hair has been a sensitive topic in the black community and has been a contentious civil rights issue for decades, with courts having largely failed to interpret the nuances of racial discrimination and black hair. There have been Law Review articles on this topic, one in particular that I will be citing heavily regarding American law titled “Black Women’s Hair: Another Way Forward” by Crystal Powell. 

Natural black hair discrimination has been pervasive socially and legally and so it is important to advocate for natural black hair the way we advocate for any other type of discrimination. I believe the problem is that we don’t recognize  biases towards natural black hair for what it is; a form of discrimination. What I hope to do in this post is to shed some light on the history of natural black hair, how and why it has changed over the years and why I believe discrimination of natural black hair exists.

If you are a black woman who has a chemical relaxer or loves her weaves/wigs, please do not feel attacked or alienated by this post. It is not my intention to attack you. Also, I am not personally offended by the sight of relaxers, weaves, or wigs. I would just like to share some of my thoughts and research on natural black hair and hopefully have a meaningful discussion about it. I truly feel we do not explore this topic enough in the black community. Ultimately, we should question the origins of black hair practices and why we have the hair practices we have in the present day.

If we understand the origins, it can create knowledge and acceptance of ourselves in the present. 

I want to say that I do not advocate for natural black hair simply because it is natural. This is not a “fake vs natural” debate for me. Nor am I saying that black women and men who wear their hair naturally are better, more conscious or more “woke,” than those who do not (although I do believe it takes a great degree of awareness and self-acceptance to wear one’s natural hair in a world that has socially and legally taught black people that our natural hair is less professional or attractive, and must be changed as a result) I’m not trying to create division within our community; I only seek to speak about this issue. There are many excellent sources on this topic: papers, books, and articles that I have mentioned previously and that I will be linking below that I have used as sources. I have cited these sources heavily to reinforce my points. I will be speaking about black hair as it relates to the United States. Although I will be citing U.S. case law, negative sentiments and biases towards natural black hair is universal.   

History of Black Hair and Social Conditioning 

According to bbc.com, “In early African civilizations, hairstyles could indicate a person’s family background, tribe and social status.” “Just about everything about a person’s identity could be learned by looking at the hair,” says journalist Lori Tharps, who co-wrote the book Hair Story about the history of black hair. For example, “when men from the Wolof tribe (in modern Senegal and The Gambia) went to war they wore a braided style,” Tharps explains. A woman in mourning would either not “do” her hair or instead adopt a subdued style. Tharps also states in Hair Story that in ancient African traditions, hair played a vital role in a woman’s beauty, wealth, marital status, religion, and rank. “Even deeper, the way the hair was worn foretold the geographical origin of the woman. In some cultures, a person’s surname could be ascertained simply by examining the hair because each clan had its own unique hairstyle.”

Traditional African hair practices changed with the Transatlantic Slave Trade. Some may ask what slavery has to do with negative stigmas towards black hair in the present. “Everything,” Tharp states, because it was “under slavery that the stereotypes regarding Black hair were created and reinforced.” Tharp argues that:

“The hair was considered the most telling feature of negro status, more than the color of the skin. The “negro status” was that of a sub-human with the very hair being characterized with non-human qualities such as wool or bush or cotton. By their hair you could know them, because distinguishing a free Black from a slave was almost immediate by looking at their hair. Once the feminine beauty ideal was characterized as requiring ‘long straight hair, with fine features,’ White slave owners sought to pathologize African features like dark skin and kinky hair to further demoralize the slaves, especially the women. Blacks of lighter complexion were generally biracial (mixed with Whites), and with that came a texture of hair more closely aligned and more easily shaped to the hairstyles worn by White women and considered acceptable in White society… For these reasons, Black women sought to straighten and contort their hair to approximate White women’s hair.”

The adoption of white hairstyles by black people was a means of accessing opportunities not only under slavery, but especially after it was abolished. Powell states that “…the simple truth is that Black women have been straightening their hair for the last 150 years because it was and has continued to be a necessity for survival in the American economy.” 

Just how pervasive is implicit bias towards black people and their hair? Powell in her paper notes that in 2016, the Perception Institute undertook a study to specifically examine implicit and explicit attitudes toward Black women’s hair. One in five Black women noted they felt social pressure to straighten their hair for work. On average, the study found, white women deemed black hair to be unprofessional and demonstrated an explicit bias against it, rating it as “less beautiful, less sexy/attractive, and less professional than smooth” (or straight) hair. The Perception Institute noted that generally white attitudes toward black hair were penalizing and negative, with the strongest stigmas held by white women. Other contemporary studies documented similar bias against naturally textured black hair and styles, with results showing an aversion to textured black hair across all groups, and black women experiencing deep anxiety because of the stigma about their hair.

Powell notes that the quest for “good hair” has been so visceral that today it is a multi-billion dollar industry. Madam CJ Walker, 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.

Another Hair Piece: Exploring New Strands of Analysis Under Title VII author Angela Onwuachi-Willig states that “In a society where straight, long, fine hair (compared to Black hair) is viewed not only as the norm but as the ideal for women, tightly coiled black hair easily becomes categorized as unacceptable, unprofessional, deviant, and too political.”

The rejection of black textured hairstyles can be seen in widespread grooming policies that explicitly ban braids, locks, and unusual hairstyles. This grooming policy issue made headlines when Texas teen DeAndre Arnold (link CNN) was presented with an ultimatum: cut his dreadlocks or be barred from his graduation ceremony. Tehia Glass, director of diversity and inclusion for UNCC’s Cato College of Education, condemned such school policies, categorizing them as “…this emphasis [for] black people to conform to whiteness and to assimilate.”

Many people, black and white alike, dismiss black hair discrimination. I personally have seen comments from black colleagues that shrug off implicit bias and discrimination against black hair, dismissing it largely as an aesthetic concern. Black hair discrimination, and the decades-old desire to assimilate white hairstyles as a result, is a subtler discrimination – but discrimination nonetheless. As Powell cites in her paper based on the findings of the film, American Denial  “denial helps to maintain the stability of the society rather than root out all injustices… Many societies tend to leave the most subtle and insidious harms just outside of change’s reach… Powell argues that “perhaps it is the subtlety of certain types of discrimination that precludes meaningful change. So, it is with Black hair. The societal discrimination against black hair is one of those insidious harms.”

I believe the onus is on us as people, regardless of race, to understand the following:

• the true origin and purpose of natural black hair practices
• how black hair practices evolved into assimilations of white hairstyles, largely out necessity
• how implicit biases, both within the black community and the workforce, still permeate today
• how all these factors affect a black person’s ability to choose how we wear our hair.

The Law and Black Hair Discrimination

How does the law treat black hair discrimination? As Powell argues, “while society may have incorporated its longstanding bias against Black hair as almost normal, it is the law that is expected to act as a check against societal bias and make opportunities, particularly in employment, equal.”

Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employment discrimination based on race, color, religion, sex, or national origin. Black women or men seeking relief for hair discrimination often claim discrimination under Title VII, which provides that:

“…it is unlawful for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his….employment, because of such individual’s race, color, religion, sex, or national origin….”

Powell notes in her article that in 2006, The U.S. Equal Employment Opportunity Commission (“EEOC”) put out a Compliance Manual that gives guidance on charges of race and color discrimination under Title VII of the Civil Rights Act. The EEOC’s Compliance Manual states that Title VII’s prohibition of race discrimination generally encompasses, among other things, “(1) a person’s physical characteristics…and (2)…employment discrimination because of cultural characteristics related to race or ethnicity.”

This guidance advises that Title VII permits employers to impose neutral hairstyle rules, but those rules must respect racial differences in hair texture and should be applied in such a way that they do not disparately impact black women from wearing hairstyles that are natural to their hair textures.

Unfortunately, federal courts are not bound by the EEOC Compliance Manual. Powell argues that federal courts have routinely disagreed with the EEOC and have consistently denied that Black women have a claim for racial discrimination when they have been terminated or lost out on a job opportunity because of wearing their hair in a hairstyle suitable to their natural texture.

According to Griggs v. Duke Power Co, cited by Powell, “plaintiffs can either bring a claim based on a disparate treatment analysis or a disparate impact analysis. This essentially means that the employer either deliberately treated members of the protected class differently compared to others and that this difference in treatment was because of an intent to discriminate…or policies that seem facially neutral but have a discriminatory impact on a protected group.

How has caselaw treated hair discrimination?

In her paper, Powell cites Rogers v. American Airlines (1981), as one of the most prominent hair discrimination cases.  In this case, Renee Rogers, an airport operations agent for American Airlines, sued her employer, claiming that their policy, which prohibited women from wearing all-braided hairstyles, was discriminatory. Powell notes that previously in Jenkins v. Blue Cross Mutual Hospital Insurance, Inc. it had been inferred that a woman fired for changing her hairstyle to an afro might have a valid Title VII claim.

Powell argues that, in the Rogers case, the court steered clear of pronouncing that the afro was, in fact, a protected hairstyle.

The implicit bias towards natural black hair is evident in the language of the court decision. The Afro is referred to as the “Afro/bush” style. The court provided that:

Plaintiff may be correct that an employer’s policy prohibiting “Afro/bush” style might offend Title VII… But…an all braided hairstyle is a different matter. It is not the product of natural hair growth but of artifice. An all-braided hairstyle is an “easily changed characteristic”, and…is not an impermissible basis for distinctions in the application of employment practices by an employer. Furthermore, Powell states, “the court callously noted that even if it were racial discrimination, it was not so big a deal.” (page 232-233 of the decision).

Powell notes in her paper the many scholars who have heavily criticized the court’s opinion. Onwuachi-Willig argues that the court’s decision is because of a lack of thought and consideration for the nature of black women’s hair. Powell suggest that if judges thought carefully of the historical and contemporary bias and oppression against women because of the texture of their hair, “they would view employer bans on natural hairstyles to be just as discriminatory as employer bans on brown skin.”

Powell notes that another scholar, Paulette Caldwell, asserted that the court, by drawing a strict immutability line—between biology (the afro) and cultural artifice (braids, etc.)— allowed the court to avoid the “basic elements of anti discrimination analysis” such as group history, the oppressed position of the group over time, and if employment practices are perpetuating the subordination.

Powell notes another scholar Michelle Turner wrote that Black women would not be able to reach successful verdicts until society in general, and judges in particular, discontinue holding “unenlightened views on cultural issues.” Turner argued that discriminatory hair policies seem neutral because those policies expect all to assimilate to the dominant hair culture and hairstyles of White individuals. She further argued that judges in turn have seen these claims as trivial because they too have approached the issue with an assimilationist perspective.

Powell also points out that federal anti discrimination statutes were not drafted on the basis of mutable (changeable) and immutable (unchangeable) characteristics of a group, but rather because of the historical oppression of certain groups based on characteristics unique to those groups. Powell provides the example that religion is a protected class under the Civil Rights Act and is in no way immutable. In fact, individuals are not born as any religion, though parents may raise them in one that they may come to adopt. Nevertheless, she states, people convert and change religions. Ultimately, the court has been persistent in its denial to recognize hair-based discrimination targeting black people.

The most recent decision is EEOC v. Catastrophe Management Solutions (CMS) in 2014 in the United States Court of Appeals for the Eleventh Circuit, which serves Alabama, Florida, and Georgia. In the case, Chastity Jones had applied for a job at a call center and, after she passed the initial interview and was offered a job, one of the human resource officers asked her if she was wearing dreadlocks. When she confirmed she was, the officer stated that locks had a tendency to look untidy. The company had a grooming policy which provided that “[a]ll personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image. The company interpreted this as a ban on dreadlocks. The EEOC sued under Title VII.  The court remained steadfast in its denial of a more nuanced perspective relating to hair discrimination, opining that

“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.”

Powell points out that the court conveniently left out religion in its opinion from the list of protected classes for which Title VII offers protection against discrimination.

The court ultimately concluded that “[n]o amount of expert testimony can change the fact that dreadlocks is a hairstyle” even if it “is a reasonable result of hair texture.” Powell argues that with this complete dismissal, the court essentially pronounced that the only solution a Black woman could hope for was if she wore her natural hair without it being combed or styled, or if she styled it in an afro. Only the afro is protected. Powell argues that “the decision that the afro is not a hairstyle but the only immutable, and therefore protected, way to wear Black hair further showed the blindness of the federal courts to the nature of black hair.”

Ironically, black hair is more prone to lock than it is to become an afro when left without grooming and yet still the court has declared locks as a mutable characteristic and therefore not protectable under Title VII.

The Legal Defense Fund (“LFD”), argued that the Eleventh Circuit incorrectly dismissed Ms. Jones’s lawsuit and erred in ruling that claims under Title VII are limited to discrimination based on “immutable” physical characteristics. LDF argues that under this misguided standard, even though CMS denied Jones employment based on a racial stereotype about her natural hair, the court suggests that Title VII provides no relief for this form of discrimination. LDF argues that if allowed to stand, the Eleventh Circuit’s ruling means that Title VII is powerless to counter employment discrimination based on racial stereotypes, and effectively permits employers to ban natural Black hairstyles in the workplace. Furthermore, LDF argues, this analysis contradicts Supreme Court precedent established in its 1989 decision Price Waterhouse v. Hopkins, which ruled that Title VII prohibits discrimination based on stereotypes, regardless of whether the stereotype focuses on mutable or immutable traits.

LDF petitioned the Supreme Court of the United States to review the case of Chastity Jones. LDF’s petition urged the Supreme Court to consider Jones’s case to correct the Eleventh Circuit’s ruling that departs from established Supreme Court precedent. CMS’s notion that locks will become messy, and are therefore unprofessional, is a false racial stereotype that denied an employment opportunity for Ms. Jones. Anti-discrimination laws, like Title VII, were enacted to root out such discriminatory employment practices. Unfortunately, the Supreme Court declined to review.

All hope is not to be lost yet for black men and women facing hair discrimination. States, without clear judicial precedents, have enacted legislation to combat black hair discrimination. The Creating a Respectful and Open Workplace for Natural Hair (CROWN) Act went into effect in California on January 1, 2020 to make it “clear that discrimination based on natural and protective hairstyles associated with people of African descent, including hair that is tightly coiled or tightly curled, locks, cornrows, twists, braids, Bantu knots and Afros is a prohibited form of racial or national origin discrimination.” According to www.thecrownact.com, the Crown Act now exist as law in 7 states; Washington, California, Colorado, New York, New Jersey, Virginia and Maryland.The Crown Act is led by the Crown Coalition and is an amazing initiative. You can sign their petition at https://www.thecrownact.com/ and become a part of the movement to end natural hair discrimination.

With the disappointing results of federal judicial precedent, it seems then that enacting state legislation will ultimately be the best means to protect against and seek relief for black hair discrimination.

Final Thoughts

Self-awareness is one of the first steps to understanding. What if every black woman and man, today, decided to wear their natural hair? The history of black hair is a traumatic one steeped in dehumanization and assimilation. It is a history every person, regardless of their race, should be aware of. White people should be aware of this history so that if, for example, a white employer is creating grooming polices for their workforce, they are aware of the implicit biases towards black hair that exist. Black people should be self-aware to recognize the subtler form of discrimination. The way the courts have regarded black hair deserves to be noted as well. If the courts are so quick to dismiss black hair discrimination, the onus is on us as people to agitate for protection against the subtler forms of discrimination.

 According to Judicial Learning Center. Org, the United States Supreme Court receives about 10,000 petitions a year. The Justices use the “Rule of Four” to decide if they will take the case. If four of the nine Justices feel the case has value, they will issue a writ of certiorari. By refusing to hear EECO v CMS, the value, presumably, was not seen by the Supreme Court in rendering a judgement on black hair discrimination.  Oftentimes, the law evolves with society. We as people, regardless of colour, must see the value in protecting against black hair discrimination. It is beyond merely an aesthetic trait or a matter of choice, natural black hair is a part of our identity that has systemically been denied or prohibited to such an extent that we as black people go so far as to risk injury (chemical burns from relaxers, alopecia from straight wigs/weaves) to conform to a straight-textured, white standard of beauty.

As Marcus Garvey said, “do not remove the kinks from your hair – remove them from your brain.”

Please let me know any thoughts or comments you may have below! Have you ever personally faced black hair discrimination? Do you believe the court’s views on the topic is the correct approach? I would love to know your thoughts on natural black hair discrimination!

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