The Political and Performative Aspects of Race and Gender

(To Be Cross Posted at Feminist Law Profs)


Here's an interesting article by Erin Aubry Kaplan at the LA Times on the political and performative aspects of "black hair", worth quoting at length:

In short, the debate about the best choices for "black hair," always charged, is flaring up again. A Louisiana sheriff said last week that anyone on the streets in dreadlocks "can expect to be getting a visit from a sheriff's deputy" because a murder suspect answering that description remained at large. In April, Susan L. Taylor, the iconic editorial director of Essence magazine, canceled a campus speech when she discovered the college forbids its students to wear "unusual" hairstyles — including braids, which are Taylor's signature look. This was noteworthy because the college was Hampton University, one of the nation's oldest historically black campuses. Then it was discovered that Black Enterprise magazine had a similar ban for student interns.

The message is clear. If blacks want to have a chance in the increasingly unforgiving corporate world, they will have to shave off their edges — starting with their hair. To Taylor and to many others, including me, such a message implies a false choice between assimilation and self-affirmation. What looks like practicality is, in fact, more denial.

What's troubling is that, by being forced to change their hair, black people once again are being forced to shoulder the burden of proof: We're not as fearsome as we look. It's up to us to mitigate our dark skin and ethnic features by framing them with hair that's as neat and unethnic as possible.

That the requirement comes from black institutions only makes it more disturbing. Yes, they are inherently conservative institutions, but they understand the political significance of hair. They should know that this is not the same as a dress code that calls for a suit and tie (understandable), or a Cosby-like antipathy toward trendy, sloppy, vaguely criminal black fashion such as baggy pants or expensive sneakers (understandable, but misplaced).

Unlike any of those looks, braids and other natural styles have long been associated with socially conscious and self-confident black people, the kind who would fit nicely in corporate settings that like to say diversity is a priority. But companies tend not to hire them, and black people with those hairstyles tend to gravitate toward work that's necessarily non-corporate. Yet surely we have all earned the right to wear our hair as we please. The freedom we're still working toward is supposed to be aesthetic as well as economic.

Paul Horwitz has an interesting follow up at PrawfsBlawg:

I suspect she's wrong to say that the corporate world is increasingly unforgiving, especially on questions of appearance. She does raise a valid point about the effects of appearance norms. But does the fact that the regulations she cites (aside from the egregious example of the Louisiana sheriff) come from black institutions complicate the picture? Does it suggest that "corporate" appearance norms are just that -- collective norms emerging from workplace culture, norms that may be objectionable but can't simply be reductively described as stemming from the callousness of a white majority? Or, as one of our commenters, John Kang, has suggested, does it suggest that even black communities can internalize a form of "white" aesthetics? Or is the answer still more complicated than either of those descriptions?

To which David Schraub of The Debate Link replied:

[My] understanding tags the cause of anti-African-American-hairstyles neither in "the callousness of a white majority," nor in "black communities...internaliz[ing] a form of 'white' aesthetics." It is, to be sure, a manifestation of White privilege, but in a more depersonalized form that does not depend on any individual actor simply demonstrating callousness or racism.

Indeed, I think this is an important observation to make. Much of what today preserves racial hierarchy (in the sense of providing privileges to Whites and disadvantaging Blacks) does not stem from simple racism and malice. Noting that a given policy entrenches racial hierarchy is not the same thing as saying that the persons who follow a certain policy are racists or virtual Klan members. Rather, racism perpetuates itself by institutions, cultural norms, and feedback loops which allow it to remain pervasive even as most individuals consciously condemn it. When we split off the tasks of "fighting racism" from "fighting racists", recognizing that the former won't always include the latter, then we can perhaps make some progress against the reflexive defensiveness many White people have towards the allegations that there still is racism in American society today.

I think that Paul raises an intriguing question, and that David makes interesting and persuasive points. In reading all of this, two things come to mind: Paulette Caldwell's iconic essay, A Hair Piece: Perspectives on the Intersection of Race and Gender (41 Duke Law Journal 397, 1991), and Eatman v. United Parcel Service 194 F.Supp. 2d 256, (S.D.N.Y. 2002).

I want to touch briefly on the point raised by Erin Aubry Kaplan about how dread locks symbolize "social consciousness," which I take to mean they represent a form of symbolic political expresssion. While I sympathize with Kaplan's demand that we all have earned the right to wear our hair as we please, I just don't think that's legally a "fundamental" right. I wonder if even Kaplan would agree that we all can dress as we please wherever and whenever, but that' s not the debate for this moment. What I want to discuss is what is a "fundamental right"?

In Eatman v. UPS, Eatman, a black UPS worker, argued that his dread locks were "an outward expression of an internal commitment to his Protestant faith" as well as his "Nubian belief system." Later in deposition he conceded that his decision to wear dreadlocks was "a personal choice" and not mandated by his religion. (which distinguishes from Sikhs and Hasidic Jews). His dreadlocks violated the company's requirement that employees wear their hair in a "businesslike manner." Supervisors who found ponytails, mohawks, green hair or locked hair could insist that employees wear caps. Eatman refused to wear a cap, since it was too hot to wear and he worried that it would damage his hair. He was thus fired for failing to cover up his dread locks, in violation of UPS' grooming codes.

In this case, the Court found that UPS' policy was not facially discriminatory, and that Eatman had failed to produce direct evidence of intentional racial discrimination:

"Eatman, however, has neither shown that the policy severely impacts African-Americans as a class, nor presented any evidence that the policy lacks a legitimate business purpose," he said. "Thus, his circumstantial evidence that most of the employees affected by the policy are black would not, on its own, reasonably support a finding of discriminatory intent against African-Americans."

Particularly interesting was that the Court dismissed the case at summary judgment (i.e., no need to go to jury) to conclude that "it is beyond cavil that Title VII does not prohibit discrimination based on locked hair," and that UPS had come forward with evidence sufficient for a jury to conclude that the company fired Eatman "because of his refusal to comply with the company's appearance guidelines" rather than racial or religious discirmination. This is despite despite Eatman's claim that dreadlocked hair is "definitely African-American hairstyle," and that the company's requirement that employees keep long hair under control disproportionately affected blacks. So why is this relevant? Well, if you want to make an argument that hair and grooming are religious or political expression, it's a rather poor argument. According to Peterson v. Hewlett Packard, courts are more inclined to protect "core political speech," which includes political opinions, religious views, or views of a protected group. A free speech defense will have more chance of success if a limited number of statements were made, the statements “expressed political views about a controversial political issue,” and (in the context of harassment) the statements were not directed at the plaintiff or not meant to hurt the plaintiff. I don't think the mere association of a physical trait with a historical political legacy is enough to qualify as core political speech, but I may be wrong on this.

But onto what I really want to write about: how "neutral" grooming codes that affect the performative aspects of race and gender perpetuate patriarchy:

Caldwell wrote an impassioned essay against assimilation and self-denial in much the same tone as Erin Aubry Kaplan. Caldwell discusses in particular "neutrally-worded" grooming requirements banning "braided hairstyles" or "extreme and unusual hairstyles" that nevertheless had a disparate effect on black women. Caldwell focused on the case of Rogers v. American Airlines, in which a black female plaintiff made an intersectional argument that the policy against braided hairstyles discriminated against her specifically as a black woman. I found this part of Caldwell's analysis of Rogers most interesting:

[R]ogers 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.

But Rogers is regretabbly unremarkable in an important respect. It rests on suppositions that are deeply embedded in Ameircan culture. 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 combating either can be made until this interdependence is acknowledged, and until the perspectives gained from considering their interaction are reflected in legal theory and public policy.

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 the [company's] policy was evenhanded 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 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 teh same grounds: neutral application of [the company'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.

(Do read Kenji Yoshino's Covering for more on how workplace dress codes require racial and sexual minorities to "cover" certain aspects of their identity)

Caldwell's 1991 essay is still relevant today, and she has compelling arguments for an intersectional analysis of employment discrimination law. Thus, while Paul Horwitz and David Schraub raise and answer interesting questions about institutional racism and white aesthetics, I am even more interested in the practical legal questions "neutral" workplace grooming requirements may raise. I am particularly interested in the race and gender disparity created by workplace grooming codes. Men and women of many races may wear their hair in dread locks or braids, and so a universal prohibition against such hairstyles does not appear discriminate against one gender. Nor does it appear to discriminate on the basis of race. And while there may be a disparate impact created by the "neutral" grooming rule on one race more than another, there must be something to suggest that there was an invidious discriminatory purpose behind the rule. And Caldwell was as right in 1991 as she would be now: courts generally uphold and defer to employer-mandated grooming codes.

Central to the issue of whether workplace codes are racially discriminatory is the issue of "mutability." Ironically, one of the cornerstones of antidiscrimination rhetoric also turns into a bit of a dagger in its side: everyone in this "enlightened" age would agree that one should not discriminate against another on the basis of something they were born with and can't change--that is, we can't hate people for who they are in some essential way. You can change whether you are dumb (read a book) whether you are mean (learn to be nice) or whether you are slovenly (take a shower)--so it's okay to dislike dumb, mean, and slovenly people. You can even say it out loud: "I hate dumb people." People may call you an elitist for that, and may question your basis for evaluating intelligence, but few will quarrel with it, particularly if you say something totally obvious like "I hate mean people." I mean, who likes jerks? But in this enlightened age, we can't necessary say out loud "I hate black people" or "I hate disabled people." And as we increasingly accept that sexuality is intrinsic rather than a choice (although this is of questionable utility in the gay rights context, in which the fluidity of sexual categories is something the community desires recognition of even as an argument for immutability serves the political goal of antidiscrimination), it's I hope going to get harder to say "I hate gay people."

Thus, if much of antidiscrimination law focuses on "mutability," something as changeful as hair, dress and makeup appear to be regulatable under standard business practices. If you can require a uniform for your workers, you can require certain modes of hair and makeup if you can demonstrate that such grooming rules fit the job requirements. (makeup is a touchy area actually, back to that later) The mutability aspect of dress and grooming touches on Yoshino's "covering" and Kang's "white aesthetics"--they are the only things that may be changed on an otherwise unchangeable person. For example, a black woman may try to lighten her skin or alter her facial features to look more white and "mainstream," but the easiest and quickest route to aesthetic assimilation would be to change her hair and dress. Similarly, I may perform eyelid surgery or other plastic surgery, but I will probably still look like an Asian woman afterwards--but I can easily lighten my hair or wear "Western" clothing (not that I usually walk around in Vietnamese ao dai).

The centrality of mutability to antidiscrimination discourse I believe necessarily impacts women of color more than men of color. I do not deny that there are many religions and ethnicities in which it is the men who are principally bound by cultural aesthetics, such as Sikh men or Hasidic Jewish men, and who would thus suffer the same under the mutability exception to grooming. But such men have a religious freedom argument (more on that later). I mean to say that in terms of mutability, what, historically, is more changeful than the ever-changing woman? (Blah blah, woman thy name is vanity, blah blah). Women are conditioned to and expected to alter their appearance on a daily basis. Actually, one of the fun parts of being a woman is the variety in wardrobe and hair and makeup. But it is precisely that ability to mutate, alter, change that disparately affects us in workplace grooming codes, confining us into steretypes of femininity, and forcing us to conform to certain aesthetic traditions. And yes, they are chiefly white, Western aesthetic traditions.

Think of those waitresses at Hooters. Female flight attendants. Those pharmaceutical sellers who push pills on doctors. For a good introduction to this issue, read Devon Carbado's, Mitu Gulati's, and Gowri Ramachandran's Makeup and Women at Work. If we can change the antidiscrimination discourse to encompass more than merely immutable characteristics such as race, national origin, religion, etc., to encompass mutable characteristics such as grooming, appearance, dress (which would have significant impact on sexual orientation and transgender issues) then we could begin to address Caldwell's original complaints about the rigidity of employment discrimination jurisprudence.

What particularly concerns me is that while workplace grooming codes may impact a male employee's sense of individuality or personal political expression, such codes necessarily implicate sexual stereotypes when applied to a female employee--and this in addition to impacting her individuality and political expression. A rule that hair should be "neat, and above the collar" for men does not at first glance implicate sexual politics, unless there is something about Fabio-length hair that society has a general interest in regulating. But workplace grooming codes about makeup and hair--that a woman not look too masculine, for example, by wearing lipstick, rouge, mascara, or have feminine styles of hair--does that not necessarily implicate sex? I know I'm just a former English major who used to write essays about female cosmetic artifice--but the history of cosmetics is primarily a history of trying to look like you've just had sex. Rouged cheeks suggest orgasm. Reddened, full lips suggest lips made swollen by kissing, or the swollen labia of the sex organs. Heavily lidded eyes suggest sleep and seduction. It's not called "bedhead" for nothing. I'm not making this up--in the 17th century, aristocratic women rouged themselves and dropped belladonna--you know, that poison nightshade---into their eyes to dilate the pupils, an effect that mimics the dilation of the eyes during sex. To regulate external, mutable appearance, particularly for female employees, is to regulate sex, and is thus discrimination because of sex.

Thus, the prohibition against dreadlocks, while indeed disparately impacting both black men and women, and while indeed impacting a form of political expression, impacts women more because of what a prohibition says about black female sexuality. That in order to look well-groomed, approachable, and let's face it in the context of female employees---attractive and alluring to the white male customer, that is to render her sexually palatable to the white male customer, an essential part of the woman must be tamed. Her hair. You cannot ignore issues of patriarchy in grooming codes for women. While grooming codes for men may exist to tame them into the corporate framework, grooming codes for women necessarily implicate the political and sexual power imbalance in our patriarchal society. Although women make great strides in corporate management and in the tenured ranks, the fact remains that in much of the service industry, female employees are seen as objects of attraction--to attract customers to a business using the art of attraction, to serve the customers, and to exist as much as ornamental beings as they are productive workers. Why else the forced standards of beauty and grooming? Why else the forced sexualization? That black employers and institutions are compelling such grooming codes may signify internalized racism, assimilation, denial, or adoption of white-aesthetics--and it may also mean that the patriarchy is color-blind, and that women of color will be "marketed" to the other sex no matter who they work for.