Identity Performance as a Bottleneck to Employment Opportunity
In his timely and provocative book, Professor Joey Fishkin makes an important intervention to anti-discrimination law praxis and theory. Poignantly, he observes that in developing anti-discrimination legislation and doctrine, policy makers as well as judges have largely focused on either eliminating or diminishing severe, pervasive, and arbitrary bottlenecks in the opportunity structure as opposed to focusing singularly on the achievement of equal outcomes. He defines bottlenecks as a “narrow place in the opportunity structure through which one must pass in order to successfully pursue a wide range of valued goals.” (Page 13). Professor Fishkin identifies three types of bottlenecks—“qualification,” “developmental,” and “instrumental good”—that policy should address in educational and employment contexts to bring about “equality pluralism”: “[the] opening up a broader range of opportunities for everyone.” (Page 2). As a race and law and employment discrimination law scholar, I am particularly interested in how Fishkin’s “anti-bottleneck” principle applies to arbitrary “qualification bottlenecks” in the employment context. Indeed, my scholarship on grooming codes discrimination illuminates how an obscured yet severe and pervasive “qualification bottleneck”—(non)conformity with racialized and gendered identity performance standards imposed by employers (which are reified within anti-discrimination jurisprudence like Title VII)—constrains or widens one’s range of employment opportunities.In this post, I will draw upon my scholarship on grooming codes discrimination to briefly explicate how one’s ability to navigate and negotiate identity performance demands limits or increases employment opportunities.Specifically, my work maintains that workplace grooming codes that prohibit Black women from donning natural hairstyles like twists, braids, and locks, as well as blonde hair violate Title VII’s proscriptions against race and gender. At first glance, one may deem employment policies banning natural hairstyles and hair colors adorned by Black women as harmless acts of employer prerogative, unrelated to race, and thus, inconsequential to equal employment opportunity. However, as my scholarship delineates, Black women’s twists, braids, locks, and blonde hair are indeed “job-irrelevant detail[s] about a person that is linked to a larger bottleneck—race—in the opportunity structure” (page 239), which constitute real barriers to the acquisition and maintenance of employment for Black women.
Though historically and contemporarily mutable characteristics like hair texture and hair colors have been racialized, numerous courts have held that employers’ formal or informal bans against Black women wearing natural hairstyles or wearing blonde hair are not race-based. Central to this holding is the “immutability” doctrine imposed in race discrimination cases, or borrowing from Professor Fishkin, a “legal bottleneck”: an indiscriminate, judicially created principle that individuals must satisfy in order to benefit from the protections anti-discrimination law affords. Per this immutability doctrine, in order for plaintiffs to assert an actionable race discrimination claim, the trait that employers regulate must be “immutable,” i.e., a trait that is either biological or simply difficult to change like one’s skin color. Despite the racialization of these traits, because they are often voluntarily performed, courts presume—erroneously—that Black women can easily change their braided, twisted, locked or blonde hair. Hence, almost uniformly courts have ruled that employer’s policies that bar a Black woman from donning blonde hair or natural hairstyles do not constitute race discrimination.
As a result, employers are lawfully permitted to impose upon Black women identity performance demands in disturbing and conflicting ways. On the one hand, Black women may be banned from “visibly performing Blackness” if an employer bans or regulates the display of twists, braids, and locks: hairstyles commonly associated with African Americans. Simultaneously, pursuant to Title VII precedent, employers can lawfully exclude Black women from employment opportunities when they don blonde hair or rather, when they perform “visible whiteness,” as blonde hair is presumably only natural to or is exclusively worn by white women. In light of Title VII case law, employers can formally and informally make certain hairstyles and hair colors a condition of employment for Black women when their identity performance swings too far on either side of a socially and legally constructed racial pendulum. If a Black woman performs “whiteness” by donning blonde hair she can suffer loss or deprivation of employment and if she performs “Blackness” by donning twists, locks, or braids, she can suffer the same unfortunate fate—often with no recourse under Title VII and parallel anti-discrimination laws.
Therefore, Title VII jurisprudence, which endorses employers’ natural hairstyle and blonde hair bans, bolsters the reification of a very narrow space in which Black women can express their identities in American workplaces—vis á vis their hair—without being subjected to arbitrary deprivations of employment. Black women are particularly vulnerable to conflicting racialized and gendered performance demands that employers can impose with impunity. Consequently, Black women are often compelled to assimilate or conform to an “invisible” racialized and gendered grooming norm by wearing straightened hairstyles and darker hair colors. Walking this seemingly “race-neutral” tightrope opens up (or at least diminishes the constraints upon) the scope of employment opportunities that Black women can successfully pursue and retain. Thus, employers’ express and implicit identity performance demands, which are expressed through formal and informal workplace grooming codes, can engender severe, pervasive, and arbitrary bottlenecks to employment that are in need of elimination.
Though I have focused my commentary on the ways in which Black women’s navigation of employers’ racialized and gendered identity performance demands can constitute a severe, arbitrary, and pervasive bottleneck to employment, it is important to note that Black women are not alone in walking an “identity tightrope” to attain employment opportunities. Indeed, many commenters attributed much of President Obama’s appeal to a majority of American voters to secure the presidential nomination in 2008 to his skillful navigation of racialized identity performance demands. To many observers, then Senator Obama did not perform his identity in ways that were “too white” nor “too Black” yet he was able to effectively perform both identities dependent upon the applicable context. Similarly, many individuals must navigate and negotiate identity performance demands linked to individual and intersecting traits like religion, ethnicity, disability, and sexual orientation in the workplace. Accordingly, in deciding which bottlenecks anti-discrimination law and policy should seek to eliminate or ameliorate, Fishkin argues, “we need to look at the opportunity structure as a whole and decide which bottlenecks are preventing (more) people from pursuing (more) paths leading to (more) valuable forms of human flourishing.” (page 160). Unsuccessful navigation and negotiation of one’s identity, or rather one’s (non)conformity to a particular norm can in fact impede the pursuit of employment opportunities and attendant advancement, fulfillment, and freedom for a range of individuals.
Professor Fishkin posits that anti-discrimination law may not always eliminate bottlenecks but it can seek to ameliorate the bottleneck, or rather help people through or around the bottleneck. (Page 19). As previously explained and as many legal scholars like Devon Carbado, Mitu Gulati, and Kenji Yoshino have also shown in their transformative work on identity performance, assimilitationist techniques are often the most practical and expedient self-remedy that individuals employ to help themselves through or around the bottleneck of identity performance demands in the workplace. Currently, anti-discrimination law—and Title VII jurisprudence in particular—encourages amelioration of the identity performance bottleneck through assimilation. Therefore, is there a meaningful way that anti-discrimination law can eliminate the bottleneck to employment opportunity that identity performance demands engender?