Covering_ The Hidden Assault on American Civil Rights - Kenji Yoshino [57]
As if admitting its analysis fell short, the court provided a separate ground for its ruling. It found the cornrow style was not an immutable aspect of race. The court posited that an “Afro/bush” style might be protected under Title VII “because banning a natural hairstyle would implicate the policies underlying the prohibition of discrimination on the basis of immutable characteristics.” The court then maintained that “an all-braided hairstyle is a different matter,” insofar as “[i]t is not the product of natural hair growth but of artifice.” The court observed that “[a]n all-braided hairstyle is an ‘easily changed characteristic,’ and, even if socio-culturally associated with a particular race or nationality, is not an impermissible basis for distinctions.”
Just as the Shahar court distinguished between Shahar’s status as a gay person and her same-sex conduct, the Rogers court distinguished between Rogers’s status as a racial minority and her race-related conduct. The court made clear that if Rogers had been discriminated against on the basis of immutable aspects of her racial identity, like her skin color or a “natural” Afro, she could have prevailed. It made equally clear that Rogers would not receive protection for the mutable aspects of her racial identity, such as cornrows. She was not protected from the demand to cover—to minimize the race-salient traits that distinguished her from the white mainstream.
I can’t resist noting that “natural hairstyle” sounds like a contradiction, as the “natural” and the “styled” are generally understood as opposites. To remain purely “natural,” the Afro would have had to remain uncut and untended—surely not the style the airline would tolerate or the court would protect. This odd moment in the court’s opinion underscores its commitment to the axiom that only immutable traits should be protected. Seized with the desire to protect Afros, the court reclassified that hairstyle as “natural” or “immutable,” showing we can gauge the depth of our commitments by how much absurdity we will risk in defending them.
This analysis may not seem shocking for the reason the court gave—hair may seem such a trivial thing. But if hair is trivial, we might ask why American made it grounds for termination. In reading the Rogers case, one can hear American Airlines and the court asking Rogers: “Why is this so important to you?” To which Rogers would respond: “Why is this so important to you?” It is worth lingering with both questions.
So far as the opinion shows, Rogers gave only a short answer to why wearing cornrows was important to her—she contended that the cornrow style “has been and continues to be part of the cultural and historical essence of Black American women.” That answer has been elaborated in an essay on the Rogers case written by law professor Paulette Caldwell, herself an African-American woman. Caldwell describes the different reactions she elicits depending on how she wears her hair. When her hair is long and straightened, she is complimented for her “competence, unusual insights, and mastery of subject matter.” When she wears an Afro, she is told she looks like a “teenager.” When she wears cornrows, she receives questions about the case in which an African-American woman was prohibited from wearing cornrows—namely Rogers. Caldwell concludes from these experiences that her hair is a site of racial self-expression, and that “good” hair for African-Americans is “white” hair because “the public equates progress for black women with the imitation of white women.” She notes that virtually all