An Analysis of Racial, Cultural, and Gender Discrimination
The Palm Beach County School District has emerged as a local leader in the fight against discrimination, voting unanimously in February to ban discrimination based on hairstyles. As we begin to see more and more headlines commending state and local governments for implementing laws to protect cultural hairstyles, it warrants looking back at how we arrived here and what must be done moving forward.
America’s original sin of racism and discrimination began before America was even an idea, with the arrival of 20 enslaved Africans to the British Colony of Virginia in 1619.[i] Although slavery was abolished in 1865 with the ratification of the Thirteenth Amendment and principles of equality were ratified in the U.S. Constitution with the Equal Protection Clause of the Fourteenth Amendment, the belief system of racial superiority ingrained in our culture and laws for over 200 years has persisted to this day. Some examples of this include the Jim Crow era, the Supreme Court overturning the Civil Rights Act of 1875, the inability of minorities to vote, and bans on interracial marriage. However, a tremendous step to right America’s wrongs took place with the passage of the Civil Rights Act of 1964.
The Civil Rights Act is the most comprehensive and progressive legislation ever enacted to address discrimination in America. Specifically, the Act prohibited discrimination on the basis of race, color, religion, or national origin.[ii] There were provisions included to ensure equal voting rights; to prohibit discrimination and segregation in places of public accommodations, public facilities, and employment; and to order the desegregation of public schools.[iii] The comprehensive and ambitious nature of the Civil Rights Act has led to extensive litigation and an extremely large catalogue of case law challenging the validity and breadth of authority granted by the Act. Fortunately, in the landmark case Heart of Atlanta Motel, Inc. v. United States, the Supreme Court upheld the constitutionality of the Act, and overturned its earlier rationale which had nullified the Civil Rights Act of 1875.[iv] However, the courts have failed to enforce the spirit of the law, which is equality. Specifically, the courts have not prohibited discrimination against physical attributes of a race, including hair, and have disregarded the historical and cultural connections hairstyles have to religion and national origin.
Historically, hairstyles have been tied to African cultural identity. Prior to slavery, African women would use hairstyles, including locks, plaits, and twists, to signify the communities to which they belonged; this was often an essential part of their dress.[v] In addition to being used to identify their community, hairstyles were also used to indicate a person’s marital status, age, religion, ethnic identity, wealth and rank within the community.[vi] After Africans were enslaved, one of the preliminary steps the slave traders would take to erase their identities was to shave their heads. Multiple studies have been conducted to evaluate the impact hair has on African American women’s social, ethnic, gender, and sexual identities, in addition to its use as linguistic identity. The importance of hair to racial identity can also be evidenced economically by the $15 billion black hair care industry in the U.S.[vii]
There has been no shortage of examples that certain hairstyles have been targeted due to their association with specific racial groups. In 1786, the Governor of Louisiana made it illegal for Creole women of color to display their natural hair and required the use of a head scarf.[viii] More recently, a bar in Virginia Beach had a dress code, which prohibited braids, twists, cornrows, and dreadlocks because, according to the security person, the owner did not want “hip-hoppers” in the establishment.[ix] Another recent example made national news when a black teenager in Texas was told he would not be able to participate in his graduation ceremony unless he cut off his dreadlocks.[x] The rule was a part of a new dress code that had been created just three months prior to the graduation ceremony. Although there is a plethora of evidence tying hairstyles to racial, gender, and ethnic identity, and a long history of targeted racial and gender discrimination on the basis of hairstyles, the courts have failed to consistently utilize the Civil Rights Act of 1964 as a remedy.
The Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Chastity Jones after she was denied a position with Catastrophe Management Solutions solely because she had dreadlocks. The suit was dismissed by U.S. District Judge Charles R. Butler, Jr., because the court found Title VII only prohibits discrimination based on immutable characteristics. The court’s ruling was upheld on appeal and the Supreme Court denied Jones’ motion to be added to the lawsuit and be heard by the court.[xi]
However, legislatures and other legal authorities have recognized this clear error of the courts and are slowly acting as a check to fix the mistake and address this form of discrimination directly. New York City was the first entity to act when its Commission on Human Rights issued guidelines banning hair discrimination in February of 2019.[xii] California became the first state to ban hair discrimination with the passage of the Crown Act; New York, New Jersey, and Virginia followed.[xiii] This movement has also recently hit close to home with the Palm Beach County School District’s unanimous vote to institute a hair discrimination ban in February of this year. Although this is a step in the right direction, we should all seek to serve as advocates at the legislative, judicial, and commercial level for the expansion of hair discrimination bans throughout Florida, in line with the spirit and intent of the Civil Rights Act of 1964.
[i] https://www.nationalgeographic.org/interactive/slavery-united-states/
[ii] https://www.eeoc.gov/eeoc/history/50th/thelaw/civil_rights_act.cfm
[iii] https://www.britannica.com/event/Civil-Rights-Act-United-States-1964
[iv] https://www.britannica.com/topic/Civil-Rights-Act-United-States-1875
[v] https://blackthen.com/you-cant-take-our-crowns-the-impact-of-slavery-on-black-womens-hair/
[vi] https://quod.lib.umich.edu/cgi/t/text/text-idx?cc=mfsfront;c=mfs;c=mfsfront;idno=ark5583.0022.105;rgn=main;view=text;xc=1;g=mfsg
[vii] https://quod.lib.umich.edu/cgi/t/text/text-idx?cc=mfsfront;c=mfs;c=mfsfront;idno=ark5583.0022.105;rgn=main;view=text;xc=1;g=mfsg
[viii] https://www.vice.com/en_us/article/j5abvx/black-womens-hair-illegal-tignon-laws-new-orleans-louisiana
[ix]https://web.archive.org/web/20120312222647/http://www.totalinjury.com/news/articles/discrimination/dreadlocks.aspx
[x] https://www.nbcnews.com/news/us-news/black-texas-teen-told-cut-his-dreadlocks-order-walk-graduation-n1120731
[xi] https://rewire.news/ablc/2018/05/16/u-s-supreme-court-ignoring-black-hair-discrimination/
[xii] https://thehill.com/homenews/state-watch/430519-nyc-to-ban-harassment-discrimination-based-on-hairstyle
[xiii] https://www.cnn.com/2020/03/05/us/virginia-ban-hair-discrimination-bill-trnd/index.html