May an Employer Fire a White Woman for Wearing Hair in Cornrows?

The Baltimore Rock Opera Society fired its recently hired executive director, allegedly because she was wearing her hair in cornrows and thus engaging in supposed cultural appropriation. The concern wasn’t that cornrows were seen as unprofessional as such, but rather that a white woman was wearing a hairstyle that is seen as culturally black. (Katie Herzog at Blocked and Reported has a very good new podcast episode on this.)

Such a firing, I think, is illegal under federal antidiscrimination law, though it’s possible (but not certain) that BROS may have a First Amendment defense, given the particular job that the woman held.

[1.] The gender identity discrimination precedent: The key precedent here is Harris Funeral Homes v. Stephens, the trans companion case to Bostock v. Clayton County. In those cases the Court held that gender identity and sexual orientation discrimination is sex discrimination, and therefore banned by the Title VII prohibition on sex discrimination. Here’s the key part of the logic behind that argument:

[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.

Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

Thus, if an employer fires a biological male for presenting as a woman—wearing clothing, makeup, and hairstyles associated with women—that is presumptively illegal because it is discrimination based on sex: The employer would allow biological females to wear clothing, makeup, and hairstyles associated with women, but not biological males, so “the individual employee’s sex plays and unmistakable and impermissible role in the discharge decision.”

[2.] The same logic carries over directly to race: If an employer fires a white woman for wearing a particular hairstyle, but would allow a black woman to wear the same hairstyle, “the individual employee’s race plays and unmistakable and impermissible role in the discharge decision.” (Likewise, if an employer fires employees for engaging in interracial relationships—e.g., by firing a black employee for dating a white woman but not firing white employees for dating white women—that is race discrimination, just as firing employees for engaging in same-sex relationships is sex discrimination.)

Now of course some people may well be offended by white women wearing hairstyles that are viewed as traditionally black, just as they may be offended by people whom they view as female presenting as male and vice versa, or by white women dating black men. But concern about customers and coworkers being offended isn’t a legally adequate justification for discriminatory rules, even when such offense may lead to tangible loss to the employer.

Note that this is a different question from whether employers can ban implement a facially “race-neutral policy” that requires hairstyles to “reflect a business/professional image,” and that is read as forbidding certain hairstyles (such as dreadlocks) “physiologically and culturally associated with people of African descent.” (See EEOC v. Catastrophe Mgmt. Solutions (11th Cir. 2016) (upholding such a policy, precisely because the court viewed it as race-neutral.) Such a policy would apply to all employees, black or white, who wear such hairstyles. The BROS decision appears to have stemmed not from a general view that cornrows look unprofessional, but from the view that cornrows should not be worn specifically by white women (or at least women who aren’t black).

[3.] Race discrimination is illegal even for small employers: Employment discrimination based on race (and ethnicity, but not sex or religion) violates not only Title VII, but also the ban on race discrimination in contracting in the federal 42 USC § 1981 statute. Section 1981 applies to employment, including by very small employers, unlike Title VII, which only covers employers with 15 or more employees. (I’m not sure how many employees the Society has; apparently it largely operates through volunteers.)

[4.] Maryland’s CROWN Act treats discrimination based on “traits associated with race, including hair texture, afro hairstyles, and protective hairstyles” “includ[ing] braids, twists, and locks” as race discrimination. It’s not clear whether the CROWN Act would apply to firing people for supposedly culturally appropriating traits associated with a different race. But it too has a 15-employee threshold, so we can set it aside here, and focus solely on the straight-up § 1981 race discrimination claim.

[5.] Historically, courts have allowed sex-based dress and grooming codes, such as rules requiring men to wear short hair, requiring women to wear makeup, and the like, on the theory that those policies impose “essentially equal burdens on men and women,” even if the rules differ for men and women. (This is part of a pattern of allowing “separate but equal” for men and women in certain narrow situations even after that principle had been rejected as to race; the pattern is also visible in the law’s tolerating single-sex bathrooms, single-sex sports teams, and single-sex colleges, where it would not do so as to race.) To quote the reasoning in Jespersen v. Harrah’s Operating Co., Inc. (9th Cir. 2006) (en banc):

In Frank v. United Airlines, Inc. (9th Cir.2000), we dealt with a weight policy that applied different standards to men and women in a facially unequal way. The women were forced to meet the requirements of a medium body frame standard while men were required to meet only the more generous requirements of a large body frame standard. In that case, we recognized that “[a]n appearance standard that imposes different but essentially equal burdens on men and women is not disparate treatment.” The United weight policy, however, did not impose equal burdens. On its face, the policy embodied a requirement that categorically “‘applie[d] less favorably to one gender[,]'” and the burdens imposed upon that gender were obvious from the policy itself.

This case stands in marked contrast, for here we deal with requirements that, on their face, are not more onerous for one gender than the other. Rather, Harrah’s “Personal Best” policy contains sex-differentiated requirements regarding each employee’s hair, hands, and face. While those individual requirements differ according to gender, none on its face places a greater burden on one gender than the other. Grooming standards that appropriately differentiate between the genders are not facially discriminatory.

We have long recognized that companies may differentiate between men and women in appearance and grooming policies, and so have other circuits. The material issue under our settled law is not whether the policies are different, but whether the policy imposed on the plaintiff creates an “unequal burden” for the plaintiff’s gender.

Not every differentiation between the sexes in a grooming and appearance policy creates a “significantly greater burden of compliance[.]” For example, in [an earlier case], this court upheld Safeway’s enforcement of its sex-differentiated appearance standard, including its requirement that male employees wear ties, because the company’s actions in enforcing the regulations were not “overly burdensome to its employees [.]” Similarly, as the Eighth Circuit has recognized, “[w]here, as here, such [grooming and appearance] policies are reasonable and are imposed in an evenhanded manner on all employees, slight differences in the appearance requirements for males and females have only a negligible effect on employment opportunities.” Under established equal burdens analysis, when an employer’s grooming and appearance policy does not unreasonably burden one gender more than the other, that policy will not violate Title VII.

I’m not sure that this reasoning survives Bostock and Stephens, which seem to make a much more categorical about sex discrimination. To quote the Supreme Court in those cases,

Nor is it a defense for an employer to say it discriminates against both men and women because of sex. This statute works to protect individuals of both sexes from discrimination, and does so equally. So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it….

Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups…. [A]n employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.

The Court in Bostock did say that it wasn’t deciding the legality of sex-based “dress codes,” but its logic suggests that they are indeed illegal. And post-Bostock cases dealing with sex-based dress codes in public schools have concluded that they do indeed constitute sex discrimination. See Peltier v. Charter Day School, Inc. (4th Cir. 2022) (en banc) (expressly rejecting the pre-Bostock “‘comparable burdens’ test for sex-specific dress codes”); Doe through Doe v. Rocky Mountain Classical Acad. (10th Cir. 2022) (likewise).

[6.] “Different but essentially equal burdens”: But in any event, for BROS to defend itself by arguing that the sex-based appearance code cases apply to race discrimination, it would at the very least have to show that its “appearance standard … imposes different but essentially equal burdens on men and women is not disparate treatment”—i.e., that BROS would forbid black employees from wearing hairstyles associated with whites (or other non-black groups), such as straightened hair for black women.

That strikes me as quite unlikely to be true. And if I’m right, and BROS indeed imposes a “no cultural appropriation” rule only on white employees (or perhaps on non-black employees), then the cases allowing certain sex-based dress codes just wouldn’t apply.

[7.] No exception for high-level nonprofit executives: I appreciate the argument that, since organizations often live or die by the goodwill of their customers, donors, and volunteers, they should be able to accommodate those groups’ preferences and even prejudices in selecting at least the organization’s leaders. Indeed, some antidiscrimination laws—though not § 1981—include some narrow exemptions that can be used to accommodate such preferences, as well as the preferences of the employers themselves. Title VII, for instance, exempts discrimination by elected officials in choosing their non-civil-service “personal staff,” “an appointee on the policy making level,” or “an immediate adviser with respect to the exercise of the constitutional or legal powers of the office.”

Some courts have also held that partners who co-own the employer are not employees for purposes of some federal employment laws. That would generally allow partners to discriminate based on sex, religion age, disability, and similar attributes in expelling partners, forcing them to retire, and the like. (Recall that § 1981 covers all race discrimination in contracting, not just employment discrimination, so race discrimination against partners would still be illegal.)

But there is no such general exemption for high-level managers of a business or a nonprofit: Even CEOs can sue for discrimination, for instance, and so can salaried officers of nonprofits. And outside these narrow exemptions, antidiscrimination law forbids race discrimination even when it stems from the rational desire to accommodate others’ preferences.

[8.] Constitutional exceptions: Finally, a last twist that offers BROS a possible defense, though it’s not clear that it would work. While § 1981 categorically forbids race discrimination in contracting, there are of course some constitutional exceptions to that:

• A church, for instance, has a First Amendment right to choose its clergy, without constraint by antidiscrimination laws.
• A theater company (including BROS) has a First Amendment right to choose the actors it hires, even if that involves race discrimination.
• Groups’ right of expressive association would allow a nonprofit (such as the Boy Scouts) committed to promoting a “straight” lifestyle not to hire gay activists as people who speak for the group (that’s the Boy Scouts v. Dale case); likewise, a group committed to opposing interracial relationships would presumably be entitled not to select volunteer spokespeople who are known to be in such relationships.
• Creators’ right not to create expression they disapprove of would likely allow them to refuse to create material promoting, say, interracial weddings or interfaith weddings as well as same-sex weddings (that’s 303 Creative v. Elenis).
• People’s right of intimate association likely allows them to choose their roommates based on race, free of antidiscrimination law.
• People’s right to marry and right to sexual autonomy would likewise presumably allow them to choose spouses and sexual partners based on race, even if antidiscrimination law purported to forbid that.

But there is no constitutional right for an organization to choose its employees or partners based on race, and I don’t think any court would recognize such a right as to executive directors, either. Nor do I think that BROS can fit within the Boy Scouts v. Dale exception, at least unless it can show that its having an occasionally corn-row-wearing executive director “would significantly affect its expression.” (“[A]n expressive association” cannot “erect a shield against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message.”) It’s also not clear that Dale, which arose as to volunteers covered by public accommodation law, would apply to employees. (Compare Starkey v. Roman Catholic Archdiocese (S.D. Ind. 2020), which declines to apply Dale to employment, with Youth71Five Ministries v. Williams (9th Cir. 2025), which does apply Dale to employment.)

At the same time, the scope of this exception, as to expressive nonprofits such as the Boy Scouts and BROS, is necessarily somewhat vaguely defined, and the executive director does speak for the organization to the public (and to volunteers and employees). The Boy Scouts argument would therefore probably be BROS’s strongest defense.