by Jade Shaffer, Senior Associate
In the midst of a racially tense society, courts have been struggling to decide what exactly “race” is and what constitutes “discrimination based on race” in the employment context. Two statutory provisions exist under which employees can bring racial discrimination claims against their employers. Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an employee or applicant because of race, color, religion, sex, or national origin, whereas § 1981 exclusively prohibits discrimination based on race. Significantly, neither Title VII nor § 1981 provides a definition of “race,” forcing courts to rely on other sources—such as dictionaries and encyclopedias, the literature of anthropologists and biologists, and the legislative history of Title VII and § 1981—to fashion a definition.
Ethnicity as a Proxy
In a 1987 Supreme Court case, St. Francis College v. Al-Khazraji, an associate professor at St. Francis College brought an action under § 1981 alleging that he was denied tenure based on his “Arabian race.” The employer argued that at the time the suit was brought, a variety of ethnic groups, including Arabs, were considered to be within the Caucasian race. Further, all individuals that might be deemed Caucasians in 1987 were thought to be of the same race in the 19th century when § 1981 became law. The Court explained in a footnote that this reasoning was based on a common understanding that there are three major human races—Caucasian, Mongoloid, and Negroid; however the Court went on to say that many biologists and anthropologists had criticized these racial classifications as arbitrary and that some scientists had concluded that racial classifications are more sociopolitical than biological in nature.
The Court rejected the employer’s argument, stating that the understanding of “race” in the 19th century was different from the contemporary understanding of “race.” Citing to 19th-century dictionaries defining “race” as “descendants of a common ancestor” or “people from the same stock” and encyclopedias describing race in terms of ethnic groups, the Court concluded that although the sources were somewhat diverse, “they do not support the claim that for the purposes of § 1981, Arabs, Englishmen, Germans, and certain other ethnic groups are to be considered a single race.” It was not until the 20th century that sources began to identify three races. Additionally, the Court went on to state that the legislative history of § 1981 reflected the understanding of “race” as it existed in the 19th century. Consequently, the Court held that “at a minimum, §1981 reaches discrimination directed against an individual because he or she is genetically part of an ethnically and physiognomically distinctive sub-grouping of homo sapiens,” although they noted that a “distinctive physiognomy is not essential to qualify for § 1981 protection.” Thus, the Court explained, if the employee could prove on remand that he had been subjected to intentional discrimination based his Arab ancestry, he would have established a case under § 1981.
Culture and Style as a Proxy
The United States Court of Appeals for the Eleventh Circuit revisited the definition of race last year in EEOC v. Catastrophe Management Solutions. In this case, the EEOC filed suit under Title VII on behalf of a black job applicant whose offer of employment was rescinded by Catastrophe Management Solutions under its race-neutral grooming policy when the employee refused to cut off her dreadlocks. The district court dismissed the complaint stating that Title VII prohibits discrimination of immutable characteristics and “[a] hairstyle, even one more closely associated with a particular ethnic group, is a mutable characteristic.” On appeal, the EEOC asserted four arguments in support of its claim: first, that race “is a social construct and has no biological definition”; second, “the concept of race is not limited to or defined by immutable physical characteristics”; third, according to the EEOC Compliance Manual, the “’concept of race encompasses cultural characteristics related to race or ethnicity,’ including ‘grooming practices”’; and fourth, “although some non-black persons ‘have a hair texture that would allow the hair to lock, dreadlocks are nonetheless a racial characteristic, just as skin color is a racial characteristic.’” 
The court stated that the primary consideration in the case was what “race” encompasses under Title VII “because the EEOC maintains that ‘if  individual expression is tied to a protected trait, such as race, discrimination based on such expression is a violation of the law.’” Noting the absence of a definition of “race” in Title VII, the court stated that words are defined by looking to their ordinary, contemporary, common meaning, and “one of the ways to figure out that meaning is by looking at dictionary definitions around the time of [the statute’s] enactment.”
Similar to the definitions cited in St. Francis, the commonality among the 1960s sources led the court to conclude that “race” referred to “common physical characteristics shared by a group of people and transmitted by their ancestors over time.” And, although the dictionaries did not use the word “immutable” to describe those characteristics, the court concluded that it was not a “linguistic stretch” to think that such characteristics “are a matter of birth, and not culture.” Additionally, the court cited prior jurisprudence to support the proposition that Title VII protects discrimination based on immutable characteristics. Despite recognizing that the distinction between immutable and mutable characteristics can be a fine and difficult line to draw, the court held that nonetheless, courts have drawn this line. The court further held that the EEOC’s complaint did not state a plausible claim of intentional discrimination based on race because a hairstyle is not an immutable characteristic.
COULD NATIONAL ORIGIN SAVE THE DAY?
In a concurring opinion in St. Francis, Justice Brennan attempted to point out that the line between discrimination based on “race”—that is, discrimination based on “ancestry or ethnic characteristics”—and discrimination based on national origin—that is, discrimination based on “place or nation of . . . origin is not a bright one.” Brennan noted that although discrimination based on ancestry is not necessarily the same as discrimination based on national origin, the two are often identical as a factual matter. Specifically, in the Title VII context, the regulations defining national origin discrimination state that such discrimination “include[s], but [is] not limited to, the denial of equal employment opportunity because of an individual’s, or his or her ancestor’s place of origin; or because an individual has the physical, cultural, or linguistic characteristics of a national origin group.”
Although the Eleventh Circuit conceded that dreadlocks are most commonly associated with the African-American race, it rejected that the association of that hairstyle with the African-American race as an “immutable trait” so as to constitute racial discrimination. However, with the “fine line” between racial discrimination and national-origin discrimination, and the definition of national-origin discrimination that prohibits discrimination “because an individual has the physical or cultural characteristics of a national origin group,” perhaps the EEOC might have been more successful arguing that dreadlocks are a cultural characteristic of African ancestry under a theory of national origin discrimination.
In the absence of a statutory definition of “race,” courts have struggled in deciding what constitutes racial discrimination. Although the Supreme Court has rejected contemporary understandings of the word, St. Francis seemed to take a more expansive approach to the historical understanding of race by classifying discrimination based on Arab ancestry as racial discrimination. However, in Castrophe the Eleventh Circuit set a narrow limitation on what constitutes racial discrimination, holding that Title VII protects only against immutable traits and not cultural associations, despite the fact that immutability is not a requirement for any other Title VII protected classes. Ultimately, because the line between racial and national-origin discrimination is a fine one, national-origin discrimination could serve as a net to catch Title VII claims that no longer fit under the umbrella of racial discrimination if the Eleventh Circuit’s decision in Catastrophe becomes the national standard.
 42 U.S.C. § 2000e-2 (2012).
 Id. § 1981.
 St. Francis College v. Al-Khazraji, 481 U.S. 604 (1987).
 Id. at 609.
 Id. at n.4.
 Id. at 612.
 Id. at 6.
 EEOC v. Catastrophe Mgmt. Sols., No. 14-13482, 2016 WL 7210059 (11th Cir. Dec. 13, 2016).
 Id. at *1.
 Id. at *3 (citing EEOC v. Catastrophe Mgmt. Solns., 11 F. Supp. 3d 1139, 1143 (S.D. Ala. 2014) (order granting motion to dismiss)).
 Id. at *2.
 Id. at *6.
 Id. at *7.
 Id. at *8–9 (first citing Willingham v. Macon Tel. Publ’g Co., 507 F.2d 1084 (5th Cir. 1975) (holding that an employer’s refusal to hire a male applicant with long hair under its neutral grooming policy was not a violation of Title VII’s prohibition on sex discrimination because length of hair is not an immutable trait); and then citing Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980) (applying the immutable characteristic limitation to national origin and holding that the firing of a Mexican-American employee for speaking Spanish to a co-worker on the job in violation of his employer’s English-only policy did not violate Title VII’s prohibition on discrimination because of nation origin)).
 Id. at *9.
 St. Francis College v. Al-Khazraji, 481 U.S. 604, 614 (1987) (Brennan, J., concurring).
 Id. at 614 (citing 29 C.F.R. §1606.1 (1986)).
 Id. at 614.