Title VII of the 1964 Civil Rights Act prohibits discrimination in employment on the basis of race, color, national origin, religion, and sex. Many Title VII cases have arisen when an applicant's or employee's non-conformity with an employer's policy barring certain hairstyles or clothing has resulted in an adverse employment action, such as a denial or termination of employment. Generally, courts have not deemed an adverse employment action resulting from an applicant's or employee's non-conformity with an employment policy banning the display of mutable characteristics commonly associated with a particular racial or ethnic group a violation of Title VII's proscription against racial, color, or national origin discrimination. These cases have largely been unsuccessful because of courts' narrow interpretations of Title VII's prohibitions against race, color, and national origin discrimination. Courts have viewed these protected categories as encompassing only "immutable characteristics" such as skin color and, in some instances, hair texture. Courts have also been less inclined to expressly hold that employment decisions based on racial, color, or ethnic stereotypes violate Title VII. Therefore, courts have hindered the efficacy of Title VII to achieve its mandate to ensure that individuals are not denied equal employment opportunities on the basis of race, national origin, and color.
This Article specifically addresses Title VII individual disparate treatment cases involving employment policies that prohibit certain mutable, racialized characteristics and resulting adverse employment actions because of an employee's non-conformity with the employment policy. In this Article, Professor Greene proposes a revised individual disparate treatment analysis for courts to adopt in such cases. Professor Greene argues that courts must employ a broader definition of race consistent with historical and contemporary understandings of race. Courts must assess the facts of these cases within a historical and contemporary social context. Additionally, courts must shift the focus from an employer's intent to discriminate to the effects of the employment decision on the employee or applicant. In doing so, courts must ascertain whether the employer's decisions perpetuate racial stigmatization. According to Professor Greene, if courts employ this pluralistic approach to individual disparate treatment cases involving mutable, racialized characteristics, Title VII's protections for employees and applicants to be free from race, color, and national origin discrimination in employment will be strengthened. Therefore, Title VII's objectives will be more fully realized.
T. A. Aleinikoff,
The Constitution in Context: The Continuing Significance of Racism,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol92/iss5/4