A Paper I Wrote in Law School: Part II

Part II – Modern Racism Meets a Modern Girl

This part of the paper is dedicated to my dad; he is my symbol of black corporate-excellence. I already mentioned my mother’s devotion to my appearance but I would be remiss for failing to mention how integral my father was in my conceptualization of self. So you can get an idea of his formality, one of his mantras describes him best: “a man never leaves the house without wearing a belt.” That’s him. A proud, belted, American immigrant. He would always tease me about getting my hair “fixed” and when I went off to college and started interviewing for jobs, every conversation would include, “are you gonna fix your hair?” As if I didn’t have enough sense to know what it took for me to look presentable. It was out of love, but still funny.

He imparted me with the life-long notion that appearance matters. Constant awareness of “fixing” because my natural was unacceptable became the exhausting norm. So when I started transitioning, I was worried of what he might say. I knew my dad was right, I know he meant well. He wanted me to look like one of the players so I could play the game. But the greater perspective I gained in law school told me no more. It wasn’t until law school that I began to realize that appearance has all to do with a healthy self-perception. Transitioning revealed to me that discussions of Black hair have crossed the southern cotton fields, through the era of Jim Crow, and to our court system. But if many black people don’t understand how their hair grows or how to care for it, then it’s hard to imagine a middle-aged white judge understanding what Black women need in the workplace or why certain hairstyles go beyond the purview of looks or trends.

The law prohibits overt racial discrimination in hiring and promotion but today, its missing the mark; modern racism must be understood as a lived experience, but a contemporary act of racisms is much less overt and almost undetectable. When a Black person complains of  experiencing racism at work or school it very rarely means someone called them a nigger or asked them to use a separate but equal vending machine in the break lounge. What that Black person is referring to is the mistreatment encountered as they traverse traditional white places.

A.   FROPOLITICS

I love how simple and effective this quote is in describing the ubiquitous importance we attach to appearance: “Sociologists, anthropologists, and high-school kids know that appearance is a mark of status, or, more accurately…"social identity."[1] It really is that simple. Appearance is important. Period! Clothing, hair styles, tattoos, and anything related to appearance are not meaningless choices. To the contrary, these are personal deliberate choices made to construct oneself for the rest of the world to see. How a person chooses to look is done to help define who they are and what social groups they do or do not belong to. To better illustrate, Fisk gives brief examples from the world of professional sports. David Stern, the commissioner of the NBA, announced that professional basketball players should dress more like businessmen and rather than rappers when out in public. George Steinbrenner, former owner of the New York Yankees, made player Johnny Damon cut his long hair as a condition of signing him to the team. These examples show us that any race, gender, or group can be subject to appearance modification. My issues with this is making Black women project a certain image in order to protect another image, at the expense of the physical and mental health, even.

I feel it is worthwhile to look at a brief history of the afro because it was the first time in Black American history that people consciously stepped into the power their hair represented. Though the demise of the afro was sad, it served an incredibly valuable purpose – to create a new proud identity. That is valuable to me because that is a theme I am exploring in this phase of my life. Now I will share a much more recent story. I braided my hair my 2L year of law school. They were down to my waist, and had a black-to-silver ombre (dark to light) effect that was slightly provocative. I was waiting for the elevator as a white girl walked up to wait. She must have been mesmerized by my hair because she impulsively grabbed my braids and uttered “how cool!” She immediately realized how disrespectful she was being by grabbing someone’s hair she’d never met before because she quickly let go and apologized. That was the first time a stranger touched my hair without solicitation. I wasn’t particularly bothered because she seemed clean but I was bothered that my braids were such a marvel. This was right before I transitioned so I was not yet well-versed in the power Black hair holds.

This constant aesthetic battle between straight or nappy, which was really a struggle of how you wish to be perceived, contributed to the emergence of an oppositional appearance – the New Negro.[2] Naturally, hair was a crucial aspect in the construction of the New Negro image. During the civil-rights era, a new identity filled with pride was taking over. After generations of “neutralizing distinctive African American characteristics,” people began to celebrate them.[3] Just as hair had been central to the way Blacks of the previous slave generation sought mainstream acceptance, hair became just as important in being a visual tool for African-American self-determination. Many Blacks began to use their hair as a symbol for pride and a new-found identity.

By the middle of nineteenth century small groups of free blacks in northern cities were debating the effects of the “good hair-bad hair” dichotomy on black identity, and whether straightening of the hair was the only appearance option for acceptance.[4] Gaining access to the American dream meant newly freed slaves had to make white people comfortable with their mere presence. Blacks took on as many Eurocentric fashions and hairstyles as possible to combat their stereotype as uncivilized and uncouth that was pervasive in the collective consciousness of both whites and blacks. Specifically, the desire was to have very neat hairstyles with every strand in place in the hopes of fitting into a European aesthetic. This desire to fit in was particularly important to blacks who interacted with whites in the workplace.

The contrasting message of the afro was about freeing the mind of mental shackles of oppression. One’s hairstyle was indicative of your politics and straightening hair, once considered a requirement for success was now a marker of the desire to emulate whiteness. In the age of “black is beautiful,” choosing to embrace the oppressive social norm was seen as blasphemous. This style was met with fear though. Whites were scared of the afro because it was unlike anything they had ever seen. They were used to black hair in some imitated form of their own. Whites also felt like blacks were silent for so long that the afro was like an outcry of the collective black voice demanding attention. “For the first time since slavery and the days of minstrel shows, white people were taking account of how blacks wore their hair.”

By the mid-seventies, many Black empowerment leaders were killed or in jail, Blacks were in Hollywood, and even the ‘Fro itself was appropriated within the aesthetic safety of the white woman.[5] Yet and still, for some Blacks the reason for getting rid of the afro was “less dramatic and more pragmatic. Many brothers and sisters of the revolution had to get jobs” which meant working for “the Man.”[6] I believe the effects of this on how Blacks perceived themselves was ground-shifting. As the 80’s approached, America was on the verge of a paradigm shift. The liberal and communal vibe that dominated the previous two decades was shifting to one of more conservative and individualistic ideals. For many, the afro meant a connection to their African ancestry. I think it is safe to say there is a resurgence of using hair as a social symbol among young black women. My choice to wear my hair natural is very deliberate. To me, it represents my belonging to a community of women who do not conform. To me, it is a social symbol for black feminism in an age of women that is largely unexposed to the history of their hair and resort to weaves and wigs because it’s the only thing they know.

B.    MODERN REGULATIONS

Back to my story about the dreadlock-ruling article I came across last Summer; it came at a pivotal moment in my life. In hindsight, this story almost instantly dissolved any insecurity I felt because it represented such a long legacy of oppression that I found purpose in my natural hair. I was only six months in to my transition, my hair was a mess, and my self-confidence was shaky. My feelings aside, I was in law school so I had a deeper interest in the systemic framework under which this story unfolded because I was baffled that in 2016, dreadlocks were preventing women from their livelihood. But far more hurtful was the realization that in 2016, a U.S. Court of Appeals reinforced America’s narrow conception of race. It seems to me that a disappointing number of judges, the gatekeepers of our legal system, still do not understand how biological differences generate unique cultural practices. While displaying an obtuse disregard for how immutable and mutable characteristics converge to form a multifaceted existence that co-exist dependently of one another. This is where first part of this paper becomes crucial to understanding my point. If we don’t know that Black hair grows differently, and it requires unique hair styles because of that, than you would never understand that hairstyles like braids or dreadlocks are nothing more than protective options, and should not be subject to legal interpretation without that background.

Since slavery, there has been a great tension between conforming to white standards and trying to maintain personal integrity and black identity. Hair and appearance is yet another platform on which African Americans manifest that tension. (living with racism) Tensions that has evolved into trauma. Caldwell remarks that grooming codes are governed by decisional law that clearly lacks conceptual coherence.[7] This history is everything to me because I was ignorant of it for so long and suffered because of that ignorance. We know history in a wider sense, but I began to connect my own dots. The transgenerational trauma African Americans suffer because of slavery today, are not isolated from the collective experiences of their ancestors.

Not until the mid-sixties was white America exposed to the war black Americans waged on their hair. The struggle to find the right look, long or short, relaxed or natural, nappy or wavy. Schools and neighborhoods were still segregated, and few blacks were on television, leaving white America unexposed to the “constant, evolving images of blacks in popular culture, the arena in which most Americans encounter other groups.”[8]

Not surprising, then, is our current state of ambiguity when law and social norms interact. There are laws in place to protect against workplace discrimination but the issue is much more ambiguous. Carbado and Gulati suggest that the laws in place do very little to protect minorities against institutionalized racial norms; “workplace practices like English-only rules and grooming regulations (e.g., rules prohibiting employees from braiding their hair)…restrict the expression of particular identities and, in so doing, marginalize them.”[9] So then, could I be marginalized for exercising a personal choice? A choice so personal that I begin to question my identity as a result. If I enter corporate America, will my story be washed over like the countless ones before me? This is why appearance matters. Sacrificing my identity for the hegemony’s appearance standards is what I don’t want to do anymore and it also seemed like my potential encounter with it wasn’t too far removed.

In 1987, a string of cases involving the issue of black women’s hair in the workplace began to garner national attention.[10] It began with Renee Rogers, a ticket agent for American Airlines. She was fired for wearing cornrows.

Pamela Walker was a full-time teacher and doctoral student at University of Chicago, who worked part-time at the Chicago Regency Hyatt, was fired when she arrived at work with cornrows. She filed a complaint with Equal Employment Opportunity Commission and the hotel offered to reinstate her.

Pamela Mitchell, part-time employee who worked at the Marriott Hotel in Downtown Washington D.C., was sent home because of her “extreme, cornrowed hairstyle.” She filed a complaint with the District of Columbia’s office of Human Rights and gained national attention. Marriott reviewed the case and welcomed Mitchell back to her position, claiming that her style was “acceptable,” but maintaining that other kinds of cornrows might not be. That was a win for her, I suppose, but definitely not in big picture terms.

Lastly, Cheryl Tatum. She worked as a restaurant cashier at the Hyatt Regency Crystal City in suburban D.C., and was asked to put her neat braids in a tight bun to comply with the company’s dress code. Cheryl complied and two weeks later the personnel director asked her to remove the braids altogether because Hyatt prohibited “extreme and unusual” hairstyles. Ultimately, the EEOC ruled that Hyatt promoted racial discrimination. This seems like a minimal victory if just last year an Appeals Court would likely disagree.

While the majority of these cases involved women who were in the hospitality industry, black women in professional fields (doctors, lawyers, educators) were choosing to wear braids as well. These women argued that braids offered practical and healthful advantages but employers were incredulous. Probably because they lacked the conceptual of how black hair grows. Many employers felt threatened by braided hairstyles because they brought attention to the fact the employee came from a different culture and had a different set of values.

C.     COST OF CONFORMITY

Gaining access to the American dream meant newly freed slaves had to make white people comfortable with their mere presence. Unfortunately, this is still a truth for many Blacks in America centuries later. A study conducted by global research organization, Catalyst, showed that Black men and women are suffering emotionally to keep up with the professional standard and hair maintenance was not to be forgotten.[11]

The stories in from this survey, and so many others like it highlight the evolution of the traumatic relationship Black women have experienced with their hair. Starting with field or house slave – rags or neat braids – to employee or corporate professional – braids or flowy wig or weave. The stakes are higher now. Education, career advancement, and upward mobility are seemingly more obtainable the homogeneity promoted in the workplace environment is continuing to perpetuate the notion that Black women in their natural state are inferior. “my right to work should not be conditioned on my disassociation with my race, gender, and culture.”[12]

When taken into perspective, mainstream white adoption of hairstyles like braids and afros was groundbreaking. African Americans spent centuries trying to emulate whites and in the 70’s white Americans began to do the reverse through cultural appropriation. A white woman with an afro-like or braided hairstyle was “cool” and trendy. A black woman with a straight bob or wavy, bouncy, and flowy look may have been trendy, but the key difference is the black woman was likely trying to get a job and be deemed “acceptable and more easily integrated.”[13] The white woman’s aesthetic choice could hinge mostly on looks and very little on sociopolitical or cultural interpretations. Most importantly, this appropriation of black hairstyles did not come with parallel acceptance. All white women who wore cornrows “there was a privilege that allowed for an exotic touch of otherness with no danger of racial contamination.”[14] So while white women were getting their hair braided for fun, black women were targeted for doing the same thing, even though their decision was made for practical reasons.

These individual experiences probably a cumulative impact to the casual observer, the cumulative impact “of repeated personal encounters with racial hostility is greater than the sum of these encounters might appear to be.” Conventional wisdom underestimates the advantages of attractiveness in our society. Of all the problems the contemporary woman’s movement has targeted, those related to appearance have seen the least amount of progress. (the injustice of appearance) – discrimination based on appearance is a significant for of injustice that the law fails to acknowledge (and should remedy).

 

_____

[1] Catherine L. Fisk, PRIVACY, POWER, AND HUMILIATION AT WORK: RE-EXAMINING APPEARANCE REGULATION AS INVASION OF PRIVACY, 66 La. L. Rev. 1111, 1119 (2006) (discussing how appearance should be analyzed as a privacy right rather than traditional discrimination theory).

[2]

[3]

[4] 19

[5] White actresses like Barbara Streisand were wearing afros and cornrows, etc., was very popular at the time. See Byrd & Tharps.

[6] There were drastic cutbacks in federal aid that went to community programs, etc. that allowed many black Americans during this time to work in the fringes of mainstream society. See Byrd & Tharps.

[7] See Byrd & Tharps

[8] See Byrd & Tharps

[9] Devon W. Carbado & Mitu Gulati, THE LAW AND ECONOMICS OF CRITICAL RACE THEORY: CROSSROADS, DIRECTIONS, AND A NEW CRITICAL RACE THEORY, 112 Yale L.J. 1757, x-x (2003) (discussing how the pursuit of homogeneity in the workplace decreases the transaction costs of managing a workforce).

[10] See Byrd & Tharps

[11] Review of Emotional Tax: How Black Women and Men Pay More at Work and How Leaders Can Take Action, ESSENCE, http://www.essence.com/lifestyle/money-career/black-women-burden-success-black-tax-emotional-health (Oct. 13, 2016).

[12] See Caldwell.

[13] 101

[14]