Michael P. Maslanka, assistant professor of law, UNT Dallas College of Law.

I am not a fan of “Star Trek: The Next Generation.” (Why was Captain Picard always yanking down on his uniform? You'd think he would have a bespoke outfit; after all, it is the 24th century.) Still, my all-time favorite “Star Trek” episode is “Transfigurations.” The Enterprise gives refuge to an alien fleeing from his home planet. Others from his species are in pursuit and intend to kill him. Why? He is evolving from a corporeal existence to an incorporeal one. Evolutionary change is apparently hard to accept in some parts of the galaxy. But the alien survives and Picard gets to express his gratitude for being able to witness a new species coming into existence.

My memory of this episode was triggered by the recent decision of the U.S. Court of Appeals for the Eleventh Circuit, Equal Employment Opportunity Commission v. Catastrophe Management Solutions, 852 F. 3d 1018. The issue: Does an employer violate Title VII of the Civil Rights Act of 1964 by taking an adverse employment action against a black woman because she wears her hair in dreadlocks? The status quo: No, because race is an immutable characteristic (like skin color or even curly/kinky hair in an Afro) but dreadlocks are a mutable characteristic because it is a hair style choice, not an inherent and unchangeable feature.

The case facts though make for a compelling story of unlawful discrimination. Chastity Jones is a black woman. She applies in line for a job as a telephone representative. All signs point to a go and she, and others, are called in for an interview. Others move on to the next phase of hiring (drug test) but human resources takes Jones aside, tells her that her dreadlocks, albeit short, are not permitted and that she must cut them off. Jones asks what's the problem, and is told by HR, “they tend to get messy, although I am not saying that yours are,” and then—in a line worthy of “The Office”—is told “but you know what I am talking about.” The Equal Employment Opportunity Commission sues and the appeals court affirms the granting of a 12(b)(6) motion on the Title VII claim.

The appeals court based its decision on the false dichotomy of “immutable/mutable.” It did not have to be.

The EEOC argued that wearing dreadlocks was a matter of “culture.” Courts will not bite on that argument because it opens up, for them, a parade of horror too terrible to contemplate. Like clay, the concept of culture can be shaped as pleased. What arguments are winners?

First, the court in Catastrophe Management—if you read between the lines—wanted to toss the immutable/mutable analysis and went out of its way to declare that it did not have power to overrule a previous panel's adoption of the analysis. It went so far as to point out the absurdity of prohibiting an adverse employment action based on wearing an Afro (natural hair) but not on wearing dreadlocks (manufactured hair). So, argue that the law needs to be changed when it is inherently illogical.

And add a dose of common sense to the argument. In 2017, the United States Army, which is here to fight and win wars, allowed black women soldiers to wear dreadlocks or other hair styles because they are easier to maintain as the Army goes up its mission. The Army also removed the terms “matted and unkempt” from its descriptions of black hairstyles in its regulations. This language merely served to perpetuate racist mindsets regarding black hairstyles.

Second, argue the basics. Black women are being asked to style their hair or cut it off or wear a covering based on white and European concepts of what is “professional.” In doing so, a greater burden is therefore being placed upon them than upon other races. They are being treated differently than white co-workers because of their race. That's disparate treatment.

Third, think proxy discrimination. A person is born in Asia. She comes to the United States when she is 25. She learns English while here but will always speak with an Asian accent. An employer decides that it will not hire anyone with an accent. In short, the accent is targeted. It is a proxy for her national origin. Similarly, prohibiting certain black hairstyles performs the same targeting function. Yes, some non-black women will wear hairstyles traditionally associated with black women but the target of the rule will still be black women.

Fourth, consider a stereotyping claim. A woman does act in a traditionally female manner and is therefore denied a promotion. (“We'd love to promote you to partner but you need to wear makeup and hose.”) Or, a person is transitioning from male to female and is denied a promotion because he is not masculine enough. ( “We'd love to promote you but this job requires the command presence of a real man.”) Same here: “We'd love to promote you but braids are inherently messy or disorderly and you would not give off a professional appearance.“ This opinion is rooted in a racially discriminatory belief.

Want to learn more? Read “NYC Commission on Human Rights Legal Enforcement Guidance on Race Discrimination on the Basis of Hair” explaining the New York City ordinance enacted in early 2019. Or check out the legislative history to the proposed California statute (SB 188, the CROWN Act (“Create a Respectful and Open Workplace for Hair.”) I do not know who came up with that acronym but that person deserves an award.

The law adapts. Antiquated concepts, without any purpose, motivated by unreasoning fear and ignorance, are eliminated through natural selection. Discrimination based upon hair is on this endangered list and not a bit too soon. And, when you think about it, more than just a “bad hair day” is at stake for the victims of this type of discrimination.