11th Circuit, ATL Redline, Justice, Racism, Sexism, Women's Issues

Wherein I Defend That Facially Racist Hairstyle Decision From The 11th Circuit

But make no mistake, this was a racist decision.

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Somebody should tell Marc Jacobs that black women actually have to go to court to defend their right to look like this.

Somebody should tell Marc Jacobs that black women actually have to go to court to defend their right to look like this.

Last week, the 11th Circuit ruled that black women aren’t allowed to wear their hair naturally. Oh, that’s not how they put it. They used the time honored dog-whistle of “professionalism” to come to the “race-neutral” conclusion that a black woman wearing her hair in dreadlocks could be fired for refusing to cut them.

But make no mistake, this was a racist decision. With apologies to Marc Jacobs, a white woman can fall out of bed and put her hair into a “professional grooming” on the train on the way into work. If a black woman is going to have the same kind of convenience, her choices are: locs (which do not require a lot of upkeep in the morning), shaving her head (the court’s decision also ignores sexism), or wearing it in a ‘fro. Anything else requires a significant investment of time and money and putting stuff in your hair that burns it straight enough so Becky with the bad grades doesn’t ask if she can touch it.

So the 11th Circuit just reduced the rush hour, low cost hair choices for black women BY A THIRD. Every other race is allowed various permutations of their natural hair to be seen as “professional” in the American work place, black women are down to two. This decision punishes black women for not having enough European ancestry to make white people comfortable.

It’s a bad rule.

But, whatever, I’m pretty okay with it. Hair is just not the hill I think we should die on.

First of all, I agree with one, small sliver of the Court’s reasoning. From the WSJ:

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Federal law bans employment discrimination on the basis of race. And courts have interpreted that to mean discrimination based on skin color and other “immutable traits.”

The concept of immutability proved decisive. Atlanta-based 11th Circuit Judge Adalberto Jordan, a President Obama appointee who wrote the appellate opinion, said he recognized that definitions and understandings of race can change over time.

“We would be remiss,” he wrote, “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 Judge Jordan was reluctant for the court to lead such an inquiry. Legally, he said the court wasn’t prepared to go down a path that no court had ever taken.

“As far as we can tell, every court to have considered the issue has rejected the argument that Title VII protects hairstyles culturally associated with race,” he stated.

There is just nothing “immutable” about hairstyles. That’s what makes them so cool. Every person can do, or not do, something to their hair to make it reflect some aspect of their individuality that they wish to express. You can color it, put on a wig or a weave, shave messages into it. And two weeks later, you can change it all again. We all have different kinds of hair, but what we do with it is ultimately a personal decision.

Personally, I think hairstyles should be one of the sacrosanct privacy rights.

But the law disagrees with me. Nobody wants to say that the “penumbra” of the Bill of Rights includes the right to a stylist.

In fact, we have a long history in this country of restricting hair choice whenever the government or a private company feels like being a prick. This is not just a black problem (though companies tend to be obviously racist when it comes to black people’s hair), and it’s not just a women problem (though hair restrictions always metastasize against women). There is an issue here that everybody faces. Not everybody faces it equally, but we’ve all been there.

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The battle is between individuality and conformity. Everybody has to struggle with it. How much personality do you want on your head, versus how much conformity you need for your job. I look at the way some of these white boys wear their hair and I think: “They can’t want that. They can’t look in the mirror and think ‘this receding bowl cut best represents my personality.'” But they dutifully comb it over because society has told them that looking like a mangy chihuahua is MORE PROFESSIONAL then wearing the blue pompadour wig they look at every time they walk past Ricky’s.

Sometimes, I let my hair get long and walk around with a pick in it. Why? Because f**k white people, that’s why. I do that when I want to make some kind of personal statement. Other times, I keep it tight. Why? Because my mom is in town and I don’t want to hear her bitch. Don’t act like I’m the only one.

Black women have to deal with all these issues, but worse. Black women have to battle on the same ground of individuality versus conformity. Plus they have to deal with sexism of men telling them what their hair is supposed to look like. Plus their hair doesn’t naturally fit with the European standards of female bulls**t. Plus there’s probably some vapid lady at work with a drop of Cherokee blood who has “good hair” and gets all the love even though she can’t put two sentences together. PLUS, every now and again, three guys on the 11th Circuit Court of Appeals will dare to offer an opinion on how they are supposed to look as if those three dudes should have any say in the matter. It sucks. It sucks for them. Their follicle life is worse than yours.

Paulette Caldwell, now a professor at NYU School of Law, wrote the definitive article on the intersection of race, gender, and law, and how it call comes down on black women’s hair. It’s in the Duke Law Journal. It came out in 1991. This issue is not new.

But the issue is not immutable. There is still choice here. We can conform our hair to the racially restrictive standards of the white man, or we can choose our own individuality. It’s not an equal choice, it’s an unfair choice for black women, but at core it’s a choice that everybody has to make.

I wish the law was better here, but we’ve decided to let employers invade everybody’s private choice on the matter.

Appeals Court: Employees Don’t Have a Right to Wear Dreadlocks [WSJ Law Blog]

Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. Sometimes, people think he’s a woman because of his name, but probably not after this knuckle-dragging post.

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