In February, the New York City Commission on Human Rights released a landmark legal opinion about hair. That legal guidance document stated that grooming policies that “ban, limit, or otherwise restrict natural hair or hairstyles associated with Black people” are racially discriminatory and hence unlawful. Per the guidance, it is now illegal for New York City businesses to require black employees to chemically straighten their hair—a laborious, expensive, and often painful process. It is also now illegal for New York City schools to punish black children for wearing their hair in cornrows, twists, braids, Bantu knots, and other traditionally black hairstyles. This change in public accommodations law, the first of its kind in the United States, was long overdue. As has been reported by many media outlets, hair discrimination is sadly commonplace. New York City’s decision is a deeply important shift in how we think about discrimination. Hopefully, it could eventually presage an important change in 14th Amendment jurisprudence.
The current legal regime around hair discrimination is a disaster. To understand why, you have to look back to the 1973 sex discrimination case Frontiero v. Richardson. In that case, the Supreme Court struck down a federal statute governing the distribution of financial benefits to military spouses. According to the statute, married servicemen could claim their wives as dependents without providing any evidence, whereas a married servicewoman had to provide the proof. The court held that the statute flunked a basic test of fairness, because it burdened servicewomen on the basis of an unchangeable trait, sex, that servicewomen had not chosen to adopt. In the court’s view, this was perilously similar to racial discrimination. In one of the opinion’s most significant passages, Justice William Brennan drew out the analogy, explaining that discrimination on the basis of sex was wrongful because sex, like race, “is an immutable characteristic determined solely by the accident of birth.”
The moral logic of Frontiero was both compelling and prophetic. In case after case, from employment law to immigration courts, immutability would be used to justify expanding anti-discrimination law to cover other marginalized groups. To take but one recent example, in the majority opinion in Obergefell v. Hodges, Justice Anthony Kennedy cited the “immutable nature” of homosexuality as one reason for striking down state bans on same-sex marriage.
Yet the immutability standard is showing real signs of wear, largely because the Supreme Court has never actually defined immutability. Instead, the court has provided a list of characteristics—race and sex, but also national origin, alienage, and illegitimacy—that it considers unchangeable, leaving legal scholars to connect the dots in most other instances. This has not, of course, stopped the court from declaring that certain characteristics, such as hairstyle, can be easily altered and are thus ineligible for protection under the Equal Protection Clause of the 14th Amendment. This seemingly commonsensical approach utterly breaks down, though, when it comes to mutable characteristics, like hair, that are tightly interwoven with immutable identities, like race.
Consider, for example, the case of Charles Eatman, a former UPS employee who brought suit for racial discrimination after being harassed on the job and eventually fired for wearing his hair in dreadlocks. Various UPS managers told Eatman, who is black, that he looked like an alien, that he looked like Stevie Wonder, that his hair looked like “shit,” and that he must have been a drug user. Yet in 2002, a federal court held that these comments did not create a racially hostile work environment. According to the court, Eatman’s managers had only insulted his hair, and since hair is an “easily changed characteristic,” it could not be part of Eatman’s immutable racial identity; therefore, Eatman’s managers had not engaged in racist harassment.
This line of reasoning is implausible, to put it mildly. Hair discrimination has always been one means by which whites reinforce racial hierarchy in this country. Thomas Jefferson, for instance, claimed that blacks could never be incorporated into the state due to their supposed “physical and moral” differences, among which he included the absence of “flowing hair.”
Nevertheless, other federal courts have reached the same conclusion as the Eatman court, meaning that change on this issue will have to come piecemeal, if at all. There are some signs of progress, though: In addition to the NYCHR’s new guidelines, the military recently lifted its ban on dreadlocks and twists.
If there’s a bright side to this breakdown in anti-discrimination law, it is that activists, courts, policymakers, and scholars have an opportunity to collectively rethink the relationships between law, identity, and equality. As I argue in a forthcoming law review article, the immutability standard can be salvaged if we think of immutability as characterizing social identities. This approach would protect any trait used by dominant groups to classify subordinate groups, regardless of how easily the trait can be changed. This might not sound like immutability strictly speaking, but consider that black people have been defined by and demeaned for their hairstyles for more than two centuries. Black social identity, in other words, is a fixed feature of American life, even if some of the traits associated with this identity are highly mutable.
Courts are slowly starting to recognize that immutable social identities depend, in part, upon mutable human characteristics. For example, some immigration courts have begun treating gender signifiers as an immutable characteristic of gender-nonconforming individuals, even though gender signifiers can be changed at will. As one court wrote, the important question is not whether a trait is literally unchangeable; it’s whether a trait distinguishes a minority group “in the eyes of a persecutor—or in the eyes of the outside world in general.” This is the right question, and hopefully it is one that the whole nation will eventually recognize. New York deserves great kudos for offering us a start.