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Paulette M. Caldwell

Excerpted from: Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 Duke Law Journal 365, 371-381 (April, 1991) (99 Footnotes)

My initial outrage notwithstanding, Rogers is an unremarkable decision. Courts generally protect employer-mandated hair and dress codes, and they often accord the greatest deference to codes that classify individuals on the basis of socially-conditioned rather than biological differences. And although Rogers rests on one line of authority without acknowledging the existence of another, grooming codes are governed by decisional law that clearly lacks conceptual coherence. All in all, such cases are generally considered only marginally significant in the battle to secure equal employment rights.

But Rogers is regrettably unremarkable in an important respect. It rests on suppositions that are deeply imbedded in American culture—assumptions so entrenched and so necessary to the maintenance of interlocking, interdependent structures of domination that their mythological bases and political functions have become invisible, especially to those to whom their existence is most detrimental. Rogers proceeds from the premise that, although racism and sexism share much in common, they are nonetheless fundamentally unrelated phenomena—a proposition proved false by history and contemporary reality. Racism and sexism are interlocking, mutually-reinforcing components of a system of dominance rooted in patriarchy. No significant and lasting progress in combatting either can be made until this interdependent aspect of their relation is acknowledged, and until the perspectives gained from considering their interaction are reflected in legal theory and public policy.

Black women are the immediate, although not exclusive, physical and material representation of the intersection of race and gender. Progress against racism and sexism requires in addition, therefore, not only an eradication of negative stereotypes about black womanhood and their associated behavioral consequences, but also a recognition that theories of legal protection that affect the material circumstances of black women are not marginal to theories regarding race or gender, but rather are central to both.

Rogers is an exemplar of employment discrimination cases that involve black women's physical image, negative stereotypes of black womanhood, and the intersection of race and gender. The assumptions underlying Rogers also appear in other areas, including those in which facile conflations of biology and culture combine with the intersection of race and gender to condition reproductive and lifestyle choices arguably more fundamental than those of hairstyle.

* * *

There is clearly a legal assumption of a race-sex correspondence or of a race-sex parallel. Women and blacks share a common history in terms of some elements of their legal status, although actual differences in their social status and attitudes toward them were, and are, substantial.*373 For many purposes, the law does and should treat racism and sexism as equivalent forms of bias, and theories and remedies developed in considering one form should ordinarily extend to the other. This assumption has clearly influenced the development of legal theory concerning race and gender. Identifying parallels serves an important heuristic function and provides a powerful tool to conceptualize and mobilize resistance to inequality.

Correlative to the assumption of race-sex correspondence, there exists an equally powerful assumption of race-sex independence or distinctiveness. Also rooted in American history, particularly in the politics of emancipation and suffrage, this assumption has contemporary manifestations in the existence of distinct political movements against racism and sexism, the development of social policy along exclusively gender or race lines, and the legal conceptualization of distinct approaches to issues of race and gender.

Like race-sex correspondence, the existence of a belief in race-sex distinctiveness is not itself a problem; it can serve important functions in the development of comprehensive legal theory on questions of race and gender. Considering actual or apparent differences between race and gender may lead to important insights, which in turn may assist in conceptualizing new approaches to challenging oppression based on either. And if, through the correspondence of race and gender, we intend to treat the two equally, and are committed to avoiding the development of hierarchies of oppression or notions of essentialism, then the intuitions derived from treating them separately under a theory of race-sex independence will ultimately serve both. Any starting point will suffice if our objective is to end domination based on race, gender, or both.

Problems arise in the development of legal theory and social policy when the possibility of other relationships between race and gender, such as intersection, are not considered. Black women's issues “slip through the cracks” of legal protection, and the gender components of racism and the race components of sexism remain hidden.

The interactive relationship between race and gender is unmistakable. Its existence flows factually and logically from an examination of the structure of dominance—historically and contemporarily—and the stereotypes, myths, and images about race and gender, and in particular black women, that sustain it. It is perplexing, therefore, that those committed to eliminating dominance based on race or gender, or both, continually fail to acknowledge or derive liberating strategies based on the fact of race-sex interaction.

Cases arising under employment discrimination statutes illustrate both the operation in law and the effect on the development of legal theory of the assumptions of race-sex correspondence and difference. These cases also demonstrate the absence of any consideration of either race-sex interaction or the stereotyping of black womanhood. Focusing on cases that involve black female plaintiffs, at least three categories emerge.

In one category, courts have considered whether black women may represent themselves or other race or gender discriminatees. Some cases deny black women the right to claim discrimination as a subgroup distinct from black men and white women. Others deny black women the right to represent a class that includes white women in a suit based on sex discrimination, on the ground that race distinguishes them. Still other cases prohibit black women from representing a class in a race discrimination suit that includes black men, on the ground of gender differences. These cases demonstrate the failure of courts to account for race-sex intersection, and are premised on the assumption that discrimination is based on either race or gender, but never both.

A second category of cases concerns the interaction of race and gender in determining the limits of an employer's ability to condition work on reproductive and marital choices associated with black women. Several courts have upheld the firing of black women for becoming pregnant while unmarried if their work involves association with children—especially black teenage girls. These decisions rest on entrenched fears of and distorted images about black female sexuality, stigmatize single black mothers (and by extension their children) and reinforce “culture of poverty” notions that blame poverty on poor people themselves. They also reinforce the notion that the problems of black families are attributable to the deviant and dominant roles of black women and the idea that racial progress depends on black female subordination.

A third category concerns black women's physical images. These cases involve a variety of mechanisms to exclude black women from jobs that involve contact with the public—a tendency particularly evident in traditionally female jobs in which employers place a premium on female attractiveness—including a subtle, and often not so subtle, emphasis on female sexuality. The latter two categories sometimes involve, in addition to the intersection of race and gender, questions that concern the interaction of race, gender, and culture.

The failure to consider the implications of race-sex interaction is only partially explained, if at all, by the historical or contemporary development of separate political movements against racism and sexism. Rather, this failure arises from the inability of political activists, policy-makers, and legal theorists to grapple with the existence and political functions of the complex of myths, negative images, and stereotypes regarding black womanhood. These stereotypes, and the culture of prejudice that sustains them, exist to define the social position of black women as subordinate on the basis of gender to all men, regardless of color, and on the basis of race to all other women. These negative images also are indispensable to the maintenance of an interlocking system of oppression based on race and gender that operates to the detriment of all women and all blacks. Stereotypical notions about white women and black men are not only developed by comparing them to white men, but also by setting them apart from black women.

* * *

The Rogers decision is a classic example of a case concerning the physical image of black women. Renee Rogers, whose work for American Airlines involved extensive passenger contact, claimed that American's prohibition of braided hairstyles in certain job classifications discriminated against her as a woman in general, and as a black woman in particular. The court did not attempt to limit the plaintiff's case by forcing her to proceed on either race or gender grounds, nor did it create a false hierarchy between the two bases by treating one as grounded in statutory law and the other as a “plus” factor that would explain the application of law to a subgroup not technically recognized as a protected group by law. The court also appeared to recognize that the plaintiff's claim was not based on the cumulative effects of race and gender.

However, the court treated the race and sex claims in the alternative only. This approach reflects the assumption that racism and sexism always operate independently even when the claimant is a member of both a subordinated race and a subordinated gender group. The court refused to acknowledge that American's policy need not affect all women or all blacks in order to affect black women discriminatorily. By treating race and sex as alternative bases on which a claim might rest, the court concluded that the plaintiff failed to state a claim of discrimination on either ground. The court's treatment of the issues made this result inevitable—as did its exclusive reliance on the factors that it insisted were dispositive of cases involving employee grooming or other image preferences.

The distinct history of black women dictates that the analysis of discrimination be appropriately tailored in interactive claims to provide black women with the same protection available to other individuals and groups protected by antidiscrimination law. The Rogers court's approach permitted it to avoid the essence of overlapping discrimination against black women, and kept it from applying the basic elements of antidiscrimination analysis: a focus on group history; identification of recurring patterns of oppression that serve over time to define the social and economic position of the group; analysis of the current position of the group in relation to other groups in society; and analysis of the employment practice in question to determine whether, and if so, how, it perpetuates individual and group subordination.

The court gave three principal reasons for dismissing the plaintiff's claim. First, in considering the sex discrimination aspects of the claim, the court disagreed with the plaintiff's argument that, in effect, the application of the company's grooming policy to exclude the category of braided hairstyles from the workplace reached only women. Rather, the court stressed that American's policy was even-handed and applied to men and women alike. Second, the court emphasized that American's grooming policy did not regulate or classify employees on the basis of an immutable gender characteristic. Finally, American's policy did not bear on the exercise of a fundamental right. The plaintiff's racial discrimination claim was analyzed separately but dismissed on the same grounds: neutral application of American's anti-braid policy to all races and absence of any impact of the policy on an immutable racial characteristic or of any effect on the exercise of a fundamental right.

The court's treatment of culture and cultural associations in the racial context bears close examination. It carefully distinguished between the phenotypic and cultural aspects of race. First, it rejected the plaintiff's analogy between all-braided and Afro or “natural” hairstyles. Stopping short of concluding that Afro hairstyles might be protected under all circumstances, the court held that “an all-braided hairstyle is a different matter. It is not the product of natural hair growth but of artifice.” Second, in response to the plaintiff's argument that, like Afro hairstyles, the wearing of braids reflected her choice for ethnic and cultural identification, the court again distinguished between the immutable aspects of race and characteristics that are “socioculturally associated with a particular race or nationality.” However, given the variability of so-called immutable racial characteristics such as skin color and hair texture, it is difficult to understand racism as other than a complex of historical, sociocultural associations with race.

The court conceived of race and the legal protection against racism almost exclusively in biological terms. Natural hairstyles—or at least some of them, such as Afros —are permitted because hair texture is immutable, a matter over which individuals have no choice. Braids, however, are the products of artifice—a cultural practice—and are therefore mutable; i.e., the result of choice. Because the plaintiff could have altered the all-braided hairstyle in the exercise of her own volition, American was legally authorized to force that choice upon her.

In support of its view that the plaintiff had failed to establish a factual basis for her claim that American's policy had a disparate impact on black women, thus destroying any basis for the purported neutral application of the policy, the court pointed to American's assertion that the plaintiff had adopted the prohibited hairstyle only shortly after it had been “popularized” by Bo Derek, a white actress, in the film “10.” Notwithstanding the factual inaccuracy of American's claim, and notwithstanding the implication that there is no relationship between braided hair and the culture of black women, the court assumed that black and white women are equally motivated (i.e., by the movies) to adopt braided hairstyles.

Wherever they exist in the world, black women braid their hair. They have done so in the United States for more than four centuries. African in origin, the practice of braiding is as American—black American—as sweet potato pie. A braided hairstyle was first worn in a nationally-televised media event in the United States—and in that sense “popularized”—by a black actress, Cicely Tyson, nearly a decade before the movie “10.” More importantly, Cicely Tyson's choice to popularize (i.e., to “go public” with) braids, like her choice of acting roles, was a political act made on her own behalf and on behalf of all black women.

The very use of the term “popularized” to describe Bo Derek's wearing of braids—in the sense of rendering suitable to the majority—specifically subordinates and makes invisible all of the black women who for centuries have worn braids in places where they and their hair were not overt threats to the American aesthetic. The great majority of such women worked exclusively in jobs where their racial subordination was clear. They were never permitted in any affirmative sense of the word any choice so closely related to personal dignity as the choice—or a range of choices—regarding the grooming of their hair. By virtue of their subordination—their clearly defined place in the society—their choices were simply ignored.

The court's reference to Bo Derek presents us with two conflicting images, both of which subordinate black women and black culture. On the one hand, braids are separated from black culture, and, by implication are said to arise from whites. Not only do blacks contribute nothing to the nation's or the world's culture, they copy the fads of whites. On the other hand, whites make fads of black culture, which, by virtue of their popularization, become—like all “pop”—disposable, vulgar, and without lasting value. Braided hairstyles are thus trivialized and protests over them made ludicrous.

To narrow the concept of race further—and, therefore, racism and the scope of legal protection against it—the Rogers court likened the plaintiff's claim to ethnic identity in the wearing of braids to identity claims based on the use of languages other than English. The court sought refuge in Garcia v. Gloor, a decision that upheld the general right of employers to prohibit the speaking of any language other than English in the workplace without requiring employers to articulate a business justification for the prohibition. by exercising the cultural component of racial or ethnic identity, the court reinforces the view of a homogenous, unicultural society, and pits blacks and other groups against each other in a battle over minimal deviations from cultural norms. Black women cannot wear their hair in braids because Hispanics cannot speak Spanish at work. The court cedes to private employers the power of family patriarchs to enforce a numbing sameness, based exclusively on the employers' whim, without the obligation to provide a connection to work performance or business need, and thus deprives employees of the right to be judged on ability rather than on image or sound.

Like Rogers, the Garcia case is a fascinating study of the extent to which antidiscrimination law perpetuates the allocation to employers of a kind of property right in the persons of women and minority employees. Out of business necessity, thirty-one of the thirty-nine employees of the company in Garcia were Hispanic because the population in the area served by the business was seventy-five percent Hispanic. Most of the employees were bilingual because many of the company's customers wanted to be waited on by a Spanish-speaking person. The employer prohibited employees from speaking Spanish on the job unless they were speaking to Spanish-speaking customers. Hector Garcia, a Mexican-American employee, was fired for responding in Spanish to a question from another Mexican-American employee about the availability of an item requested by a customer. The use of Spanish is thus a virtue when the employer benefits, a vice when the employee does.

In Rogers, the court clearly considered the prohibition of all-braided hairstyles to relate more to American's choice of the image it would promote for its business than to plaintiff's race, gender, or both. It noted American's assertion that “the policy was adopted in order to help American project a conservative, and business-like image,” but made clear that the policy would have been valid without the showing of any business justification.

But what is American's conception of a business-like image? Why are American and Hyatt—top companies in the United States—afraid of black women in pageboy hairstyles? What role does sexuality play in determining the proper grooming and image of women? And should we distinguish between an employer's fear and repression of black female sexuality and its exploitation of female sexuality in general, albeit a sexuality constructed to reflect proper notions of the ideally-beautiful, sexual—but not sexy—woman? The business justification requirement dispensed with in Rogers is specially designed to assist courts in answering these questions. Properly applied, this requirement should also assist the court in determining whether American's policy is motivated by the complex of negative associations with black womanhood, associations that do not initially appear to affect black men or white women.


[a] Professor of Law, New York University.