CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

Pursuant to 11th Cir. R. 26.1 and 28-1(b), I hereby certify that the following persons have an interest in the outcome of this case:

Bean, Julie (EEOC Supervisory Trial Attorney)

Brown, Whitney R. (Attorney for Defendant)

Bruner, Paula R. (EEOC Appellate Attorney)

(Hon.) Butler, Jr., Charles R. (Sr. United States District Judge)

Catastrophe Management Solutions (Defendant-Appellee)

Chamber of Commerce of the United States of America (Amicus Curiae in support of Defendant)

Connolly, J. Michael (Attorney for Amicus Curiae Chamber of Commerce of the United States of America)

Consovoy McCarthy PLLC (Attorneys for Amicus Curiae Chamber of Commerce of the United States of America)

Consovoy, William S. (Attorney for Amicus Curiae Chamber of Commerce of the United States of America)

Davis, Lorraine C. (EEOC Assistant General Counsel, Appellate Litigation Services)

Equal Employment Opportunity Commission (Plaintiff-Appellant)

Equal Employment Opportunity Commission – Birmingham District Office

Fonde, Daphne Pilot (individual owning shares in Defendant)

Gibson, Dunn & Crutcher LLP (Attorneys for Defendant)

Goldstein, Jennifer S. (EEOC Associate General Counsel, Appellate Litigation Services)

Horowitz, Jeremy D. (EEOC Appellate Attorney)

Hubbard, Meriem L. (Attorney for Amicus Curiae Pacific Legal Foundation)

Johnson, Jr., Thomas M. (Attorney for Defendant)

Jones, Chastity (Charging Party)

Lee, James L. (EEOC Deputy General Counsel)

Lehotsky, Steven P. (Attorney for Amicus Curiae Chamber of Commerce of the United States of America)

Lehr Middlebrooks & Vreeland, P.C. (Attorneys for Defendant)

Lopez, P. David (EEOC General Counsel)

McCarthy, Thomas R. (Attorney for Amicus Curiae Chamber of Commerce of the United States of America)

Middlebrooks, David J. (Attorney for Defendant)

(Hon.) Milling, Jr., Bert W. (United States Magistrate Judge)

Pacific Legal Foundation (Amicus Curiae in support of Defendant)

Pilot Catastrophe Services, Inc. (privately held affiliate of Defendant)

Pilot, Curtis F. (individual owning shares in Defendant)

Pilot, Rodney A. (individual owning shares in Defendant)

Pilot, Jr., W. Davis (individual owning shares in Defendant)

Postman, Warren (Attorney for Amicus Curiae Chamber of Commerce of the United States of America)

Reams, Gwendolyn Young (EEOC Associate General Counsel, Litigation Management Services)

Rucker, Marsha Lynn (EEOC Trial Attorney)

Scalia, Eugene (Attorney for Defendant)

See, Lindsay S. (Attorney for Defendant)

Smith, C. Emanuel (EEOC Regional Attorney, Birmingham District Office)

Thompson, Joshua P. (Attorney for Amicus Curiae Pacific Legal Foundation)

Todd, Kate Comerford (Attorney for Amicus Curiae Chamber of Commerce of the United States)

Walker, Helgi C. (Attorney for Defendant)

Wheeler, Carolyn L. (EEOC Acting Associate General Counsel, Appellate Services)

Pursuant to Fed. R. App. P. 26.1, the Equal Employment Opportunity Commission, as a government agency, is not required to file a corporate disclosure statement.

October 31, 2016 /s/ Jeremy D. Horowitz

Jeremy D. Horowitz Counsel for Appellant EEOC

TABLE OF CONTENTS

Certificate of Interested Persons and Corporate Disclosure Statement.................. C-1

Statement Regarding Rehearing En Banc........................................................................ S-1

Table of Authorities................................................................................................................... ii

Rule 35(b) Statement of Issues Asserted to Merit En Banc Consideration................ 1

Statement of the Course of Proceedings.............................................................................. 2

Statement of Facts..................................................................................................................... 3

Panel Opinion............................................................................................................................. 5

Argument...................................................................................................................................... 6

I... In Rejecting the EEOC’s Allegation That CMS Applied its Appearance Policy in a Racially Discriminatory Way, the Panel Misapplied the Supreme Court’s Twombly/Iqbal Standard for Dismissal Under Rule 12(b)(6)....................................................................... 6

II. The Panel’s Narrow Focus on Congress’s Interpretation of the Term “Race” When it Passed the Civil Rights Act in 1964 Conflicts with Binding Supreme Court Precedent. 13

Conclusion................................................................................................................................. 15

Certificate of Service

Addendum: Panel Opinion

Table of Authorities

Page(s)

Cases

Ashcroft v. Iqbal,
556 U.S. 662 (2009)................................................................................................ 1, 12, 13

Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007)................................................................................................ 1, 12, 13

Cargill v. Turpin,
120 F.3d 1366 (11th Cir. 1997)......................................................................................... 8

Garcia v. Gloor,
618 F.2d 264 (5th Cir. 1980).............................................................................. 1, 8, 9, 13

Glenn v. Brumby,
663 F.3d 1312 (11th Cir. 2011).................................................................................. 1, 14

Jenkins v. Blue Cross Mutual Hospital Insurance, Inc.,
538 F.2d 164 (7th Cir. 1975) (en banc)............................................................. 2, 10, 13

Lyes v. City of Riviera Beach,
166 F.3d 1332 (11th Cir. 1999) (en banc).................................................................... 14

Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75 (1998)..................................................................................................... 1, 2, 14

Price Waterhouse v. Hopkins,
490 U.S. 228 (1989)..................................................................................................... 11, 12

Rogers v. American Airlines, Inc.,
527 F. Supp. 229 (S.D.N.Y. 1981)........................................................................... 10, 13

Speaker v. U.S. Department of Health and Human Services Center for Disease Control & Prevention,
623 F.3d 1371 (11th Cir. 2010)....................................................................................... 12

Thomas v. Chertoff,
Appeal No. 0120083515, 2008 WL 4773208 (E.E.O.C. Office of Fed. Operations Oct. 24, 2008)........................................................................................................................ 7

Willingham v. Macon Telegraph Publishing Co.,
507 F.2d 1084 (5th Cir. 1975) (en banc)................................................................ passim

Statutes

42 U.S.C. § 1985(3).................................................................................................................. 15

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17........ passim

..... 42 U.S.C. § 2000e-2(a)(1)................................................................................................. 13

Other Authorities

Fed. R. App. P. 4(a)............................................................................................................... 2, 3

Fed. R. App. P. 35(a)(2)............................................................................................................ 2

Fed. R. App. P. 35(b)................................................................................................................ 1

Fed. R. Civ. P. 12(b)(6)...................................................................................................... 6, 13

R ULE 35(b) STATEMENT OF ISSUES ASSERTED TO MERIT EN BANC CONSIDERATION

This case involves the pleading standard applied to a complaint alleging race discrimination under Title VII in the face of a motion to dismiss. The panel affirmed the district court’s decision to dismiss the EEOC’s Proposed First Amended Complaint (FAC), which alleged that the defendant employer violated Title VII when it applied its appearance standard against the charging party in a racially discriminatory manner. Because the FAC contained sufficient allegations to raise a plausible claim for relief under a disparate treatment theory of race discrimination under Title VII – a theory favorably contemplated in Willingham v. Macon Telegraph Publishing Co., 507 F.2d 1084 (5th Cir. 1975) (en banc), and Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980) – the dismissal violated Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009).

In coming to its decision, moreover, the panel focused narrowly on the intent of the legislature when it passed the Civil Rights Act in 1964, rather than the current understanding of the term “race,” in determining the scope of racial discrimination the Act forbids. This approach to interpreting Title VII disregards the Supreme Court’s holding in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), echoed in this Court’s decision in Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), that “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale, 523 U.S. at 79.

Finally, to the extent the panel’s decision fully embraces the distinction between mutable and immutable traits while ignoring the larger racial context of such traits, it conflicts with Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164, 168-69 (7th Cir. 1975) (en banc), which held that an allegation that Black employees were required to maintain White hair and dress styles constituted a sufficient claim for racial discrimination under Title VII. It therefore creates a circuit split, presenting a question of exceptional importance under Fed. R. App. P. 35(a)(2) that warrants en banc rehearing.

STATEMENT OF THE COURSE OF PROCEEDINGS

The EEOC filed a complaint alleging that Catastrophe Management Solutions (CMS) discriminated against Chastity Jones based on race in violation of Title VII. T9-D.1.[1] The district court dismissed the complaint without prejudice. T6-D.19 (Dismissal Order); T5-D.20 (Judgment). The EEOC moved to amend the complaint, and the district court denied the EEOC’s motion to amend. T4-D.27. The EEOC filed a timely notice of appeal. T2-D.30; Fed. R. App. P. 4(a). A panel of this Court affirmed. Slip op. at 2.

STATEMENT OF FACTS

Charging party Chastity Jones, a Black woman, applied online for a Customer Service Representative (CSR) position with CMS on May 3, 2010. T8-D.21-1 (Proposed First Amended Complaint (FAC)) ¶ 9. CSRs work in a call center and have no in-person public contact with customers. Id. ¶ 10. CMS’s appearance policy, which applies to all employees regardless of their degree of in-person customer contact, states that employees must “be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines.” Id. ¶ 17. With respect to hairstyles, the policy states, “[H]airstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.” Id. CMS interprets this policy to impose a blanket prohibition on dreadlocks. Id. ¶ 18.

CMS selected Jones for an in-person interview, at which time it offered her the CSR position. Id. ¶¶ 12, 14. While speaking with Jones about post-offer forms and scheduled lab tests, Jeannie Wilson, CMS’s Human Resources Manager, observed Jones’s short dreadlocks and told her CMS would not hire her with the dreadlocks because “they tend to get messy, although I’m not saying yours are, but you know what I’m talking about.” Id. ¶¶ 14-16. When Jones told Wilson she would not cut off her dreadlocks, Wilson told Jones CMS could not hire her. Id. ¶ 16.

The EEOC filed a Title VII action alleging that CMS intentionally discriminated against Jones based on race when it withdrew its job offer because Jones would not cut her dreadlocks. T9-D.1 (Complaint). CMS moved to dismiss the EEOC’s complaint, primarily arguing that because dreadlocks are a mutable hairstyle not protected by Title VII, the complaint’s factual allegations do not support a plausible claim of race discrimination. D.7 (CMS Mtn. to Dismiss). The district court granted the motion, holding that “employers’ grooming policies are outside the purview of Title VII.” T6-D.19 (Dismissal Order) at 5. The court explained that the “mutability” of the characteristic at issue is key to the analysis: employers cannot discriminate against employees based on immutable characteristics, but “[a] hairstyle, even one more closely associated with a particular ethnic group, is a mutable characteristic” – even if it is “a reasonable result of hair texture, which is an immutable characteristic” – and therefore cannot be the basis of a Title VII claim. Id. at 8, 9. The opinion also rejected the EEOC’s argument that excessive deference to employer appearance policies allows employers to apply their policies in a discriminatory manner, concluding that the EEOC had not sufficiently alleged discriminatory application of the appearance policy in its complaint. Id. at 9.

The EEOC thereafter filed a motion to amend its complaint and attached its proposed FAC, in which it expanded on the factual and legal assertions underpinning its claim that CMS racially discriminated against Jones when it interpreted its appearance policy to forbid all dreadlocks. T8-D.21. The proposed FAC explained that CMS’s application of its policy favored White standards of appearance, placing an additional burden on Black employees who wish to comply with those standards. T8-D.21-1 (FAC) ¶¶ 24, 26-28, 30. The FAC also detailed how the policy’s ban on the natural display of Black hair was based on a racial stereotype regarding those who chose to adopt a natural style for their hair as “radicals” and “troublemakers.” Id. ¶ 27. The district court denied the motion, concluding that amendment would be futile because the FAC would still be subject to dismissal. T4-D.27 (Denial Order) at 1.

PANEL OPINION

On appeal, a panel of this Court affirmed. Slip op. at 2. The panel began by distinguishing disparate treatment and disparate impact theories of race discrimination under Title VII, noted the EEOC’s confirmation at oral argument that it is proceeding only under a disparate treatment theory, and explained that prevailing under such a theory requires a plaintiff to “demonstrate that an employer intentionally discriminated against her on the basis of a protected characteristic.” Id. at 10. Because of its focus on the EEOC’s disparate treatment claim, the panel stated that it would not address the Commission’s arguments about the dreadlock ban’s effect on Black applicants more generally. Id. at 11.

After noting that the meaning of “race” was contested in 1964 at the time Congress adopted the Civil Rights Act, the panel explained its view that Title VII was intended to provide equal employment opportunity, and in keeping with that goal, “Title VII protects persons in covered categories with respect to their immutable characteristics, but not their cultural practices.” Id. at 23 (citing Willingham, 507 F.2d at 1092; Garcia, 618 F.2d at 269). Because it found that the EEOC had not alleged in the FAC that dreadlocks were an immutable characteristic of Blacks, the panel held that the EEOC had not stated a plausible claim of race discrimination under Title VII. Id. at 25. Finally, the panel explained that expanding the definition of “race” to include cultural practices would lead to difficult line-drawing over which cultural characteristics to protect, and suggested that this determination was better left to legislatures than to the courts. Id. at 30-34.

ARGUMENT

I. In Rejecting the EEOC’s Allegation That CMS Applied its Appearance Policy in a Racially Discriminatory Way, the Panel Misapplied the Supreme Court’s Twombly/Iqbal Standard for Dismissal Under Rule 12(b)(6).

The FAC alleges that by interpreting its appearance policy to impose a per se ban on dreadlocks as “excessive” or insufficiently “professional,” CMS discriminates against Black applicants, including Jones. Specifically, the FAC alleges that CMS applies its rules to favor “Caucasian hair and style standards” based on “a normative standard and preference for White hair.” T8-D.21-1 (FAC) ¶¶ 24, 27, 30. To comply with these standards in order to avoid being branded a “radical” or a “troublemaker,” Black applicants and employees, including Jones, are often required to seek potentially painful and costly chemical straightening treatments or to purchase expensive weaves or wigs – a penalty for employment that White applicants and employees are not required to endure. Id. ¶ 27 (noting that meeting “Caucasian hair and style standards” often requires Black applicants and employees to “submit[] to expensive and harsh treatments that straighten their hair or … wear wigs, hair pieces, or extensions”). When an individual like Jones decides not to take on such an additional burden, and instead adopts a hairstyle like an Afro or dreadlocks that is more conducive to and appropriate for Black hair texture, she is deprived of employment opportunities that would otherwise be available to her. CMS’s interpretation of its appearance policy therefore discriminated against Jones on the basis of race.[2]

Relying on the distinction between mutable and immutable characteristics set out in Willingham and Garcia, the panel held that the EEOC’s argument failed as a matter of law. Slip op. at 19-25. But the Willingham standard is not so restrictive, and the application of the mutability test is not so clear-cut.[3] In Willingham, the Fifth Circuit addressed a Title VII challenge to an employer’s policy that imposed different hair-length requirements on men and women. The court rejected the claim, holding that “distinctions in employment practices between men and women on the basis of something other than immutable or protected characteristics do not inhibit employment opportunity in violation of” Title VII. Willingham, 507 F.2d at 1092. The court distinguished the regulation at issue from one that “pose[s] distinct employment disadvantages for one sex,” indicating that a regulation that did disadvantage one group over another would indeed violate Title VII. Id. at 1091-92 (quoting Dodge v. Giant Food, Inc., 488 F.2d 1333, 1337 (D.C. Cir. 1973)); see id. at 1092 (noting that men and women were both subject to “generally accepted community standards,” so “in this respect each sex is treated equally” (internal citation omitted)).

In Garcia, similarly, the Fifth Circuit addressed an employee’s Title VII national origin discrimination challenge to his employer’s English-only workplace rule. The court rejected the challenge but noted that an employer’s policy “that impose[s] a burden on an employee on one of the prohibited bases,” including race, would violate Title VII. Garcia, 618 F.2d at 269.

The touchstone for the analysis in both Willingham and Garcia is whether an employer’s policy limits employment opportunity based on the individual’s protected status (in Jones’s case, race). Here, Jones was held to an appearance standard favoring White employees, under which dreadlocks were forbidden because “they tend to get messy” (even though Wilson admitted that Jones’s were not). T8-D.21-1 (FAC) ¶ 16. If she wanted to accept the job CMS offered her, she would need to cut off nearly all of her hair and, if she wanted to grow her hair in the future, would need to undergo a regimen of potentially painful and expensive chemical straightening treatments or purchase costly wigs or hair extensions. This race-based burden on Jones’s employment with CMS – based not on how Jones’s hair looked but instead on CMS’s view of how dreadlocks “tend to get,” and more generally on the belief that only hair styles more amenable to White hair reflect the company’s desired “professional and businesslike image” – imposed an unquestionable race-based disadvantage on her, in violation of Title VII.

This is not a novel extension of Title VII. In Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164 (1976) (en banc), every member of the Seventh Circuit en banc court acknowledged that the plaintiff had alleged a valid claim of race discrimination under Title VII when she alleged that she was denied a promotion because she began wearing her hair in an Afro. 538 F.2d at 168 (noting that the “description of racial discrimination could hardly be more explicit”). Even the dissent, which challenged a separate part of the majority’s analysis, acknowledged that the plaintiff’s claim that “black employees were required to observe white hair styles and dress styles” stated a valid Title VII race discrimination claim. Id. at 169 & n.* (Tone, J., dissenting).

Similarly, in Rogers v. American Airlines, Inc., 527 F. Supp. 229 (S.D.N.Y. 1981), the court noted that “an employer’s policy prohibiting the ‘Afro/bush’ style might offend Title VII,” in large part “because banning a natural hairstyle would implicate the policies underlying the prohibition of discrimination on the basis of immutable characteristics.” 527 F. Supp. at 232. The panel here cited this aspect of Rogers approvingly but distinguished the case based on its conclusion that an Afro hairstyle is immutable while dreadlocks are not. As alleged in the FAC, however, this is a specious distinction: both hairstyles are suitable for the natural texture of black hair because they do not require hiding or artificially straightening it. T8-D.21-1 (FAC) ¶¶ 26, 27. In this way, they are both natural outgrowths of the immutable texture of Black hair. Both hairstyles – like the vast majority of all hairstyles, regardless of an individual’s race – require some maintenance. But there is nothing inherent in the type of maintenance that logically renders one hairstyle “natural” and “immutable” and the other “artificial” and “mutable.”

More generally, “mutability” is a problematic standard by which to determine whether an appearance policy violates Title VII. At some level, many physical characteristics are somewhat mutable. Indeed, even dark skin may be “bleached” through chemical procedures. But no court could possibly conclude that an employer’s “mandatory light skin” policy passed muster under Title VII, even though light skin is theoretically available to every applicant. Both the additional burden imposed on Black employees to meet such a standard and the message such a standard would convey about a normative preference for White characteristics would render the policy obviously racially discriminatory.

In addition, Supreme Court precedent in the years following Willingham calls into question the continuing validity of mutability as a means of distinguishing between permissible and impermissible rules. The Court held in Price Waterhouse v. Hopkins that an employer’s refusal to promote a female employee because she did not wear makeup and jewelry and was insufficiently feminine in her hairstyle, dress and behavior violated Title VII because it relied excessively on sex stereotyping: “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for ‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” 490 U.S. 228, 251 (1989) (quoting Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)). Here, similarly, the employer imposed a blanket ban on dreadlocks because of its racially stereotyped impression of individuals who wear dreadlocks. Price Waterhouse’s rejection of the employer’s stereotype-based promotion criteria as a discriminatory violation of Title VII – despite the mutable nature of the dress, makeup, hairstyle and jewelry at issue – indicates that Willingham’s distinction between mutable and immutable characteristics in determining whether appearance requirements violate Title VII is no longer good law.

Again, the panel in this case affirmed dismissal of the EEOC’s complaint on a 12(b)(6) motion, holding that the operative complaint failed to state a plausible claim of intentional race discrimination. Under the Twombly/Iqbal standard, however, a complaint need only provide “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,” Iqbal, 556 U.S. at 678 (internal citation omitted), with allegations that “raise a right to relief above the speculative level,” Twombly, 550 U.S. at 555; see Speaker v. U.S. Dep’t of HHS CDC & Prevention, 623 F.3d 1371, 1381 (11th Cir. 2010). So long as the complaint contains sufficient facts to spell out a claim for relief, it must survive a motion to dismiss. Twombly, 550 U.S. at 556.

Based on Willingham, Garcia, Jenkins, and Rogers, the facts alleged in the FAC set forth a fully plausible claim for relief under Title VII based on the theory that CMS’s application of its appearance standard imposed an impermissible race-based burden on Jones, and this additional burden violated Title VII’s prohibition of employment discrimination against any individual “because of … race.” 42 U.S.C. § 2000e-2(a)(1). Discovery will allow the EEOC to prove this claim. It will reveal more information about CMS’s application of its policy, showing how the company decides which hairstyles “project[] a professional and businesslike image” and which are deemed “excessive.” T8-D.21-1 (FAC) ¶ 17. It will reveal the basis for CMS’s determination that dreadlocks are per se unprofessional and show the extent to which such a judgment is based on impermissible stereotyping. It will uncover whether the ban on dreadlocks represents CMS company-wide policy or HR Director Wilson’s personal, potentially biased, views. And discovery will demonstrate the extent to which CMS’s interpretation institutionalizes a normative preference for White standards that penalizes those, like Jones, who wear a hairstyle better suited for Black hair. Dismissing the case under Rule 12(b)(6) as a matter of law, without affording the EEOC the opportunity to conduct this discovery to substantiate its allegations, constitutes reversible error. See Twombly, 550 U.S. at 555, 556; Iqbal, 556 U.S. at 678.

II. The Panel’s Narrow Focus on Congress’s Interpretation of the Term “Race” When it Passed the Civil Rights Act in 1964 Conflicts with Binding Supreme Court Precedent.

In deciding whether Title VII’s prohibition on “discriminat[ion] against any individual … because of such individual’s race” applies to the policy at issue in this case, the panel focused narrowly on the meaning Congress ascribed to the term “race” when it enacted the Civil Rights Act in 1964. Slip op. at 15-19 (quoting 42 U.S.C. § 2000e-2(a)(1)). The panel noted that race may no longer be susceptible to biological definition, but stated that this “current reality does not tell us what the country’s collective zeitgeist was when Congress enacted Title VII half a century ago.” Id. at 19.

As the Supreme Court has made clear, however, it is the words of Title VII, rather than the intentions of the enacting members of Congress, that must guide judicial interpretation of the statute: “[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998); see Glenn v. Brumby, 663 F.3d 1312, 1318 n.5 (11th Cir. 2011) (“[R]eliance on the presumed intent of Title VII’s drafters is … inconsistent with Oncale v. Sundowner Offshore Services, Inc., where the Supreme Court held that original legislative intent must not be given controlling weight in interpreting Title VII.”); Lyes v. City of Riviera Beach, 166 F.3d 1332, 1338 (11th Cir. 1999) (en banc) (rejecting a narrow interpretation of the scope of 42 U.S.C. § 1985(3) that was based on the concerns of the enacting legislators).

Title VII forbids discrimination based on race, not discrimination based on race as that concept was understood in 1964. As our conception of race has become sharpened in the intervening years, so must our understanding of the conduct that Title VII renders illegal. The panel was under no obligation to defer to the understanding of race Congress had in 1964. To the extent the panel believed it was constrained to interpret the statute according to the “collective zeitgeist” of the 1960s, and this belief colored its conclusions, this Court should rehear the case en banc to clarify that the current understanding of Title VII’s words must drive the interpretation of its provisions.

CONCLUSION

For the foregoing reasons, the Commission requests that the Eleventh Circuit rehear this case en banc.

Respectfully submitted,

P. DAVID LOPEZ U.S. Equal Employment

General Counsel Opportunity Commission

Office of General Counsel

JENNIFER S. GOLDSTEIN 131 M St. N.E., Room 5SW24J

Associate General Counsel Washington, D.C. 20507

(202) 663-4716

LORRAINE C. DAVIS jeremy.horowitz@eeoc.gov

Assistant General Counsel

s/Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

[1] “T” refers to the Appendix tab number at which the cited document can be found. “D” refers to the district court docket entry number.

[2] The panel’s opinion states that the EEOC’s position regarding dreadlocks is not entitled to deference in part because the Commission came to a different conclusion in an administrative appeal challenging a grooming policy “interpreted to prohibit dreadlocks and similar hairstyles,” and the Commission “opted not to address” that decision in its reply brief. Slip op. at 27 (citing Thomas v. Chertoff, Appeal No. 0120083515, 2008 WL 4773208, at *1 (E.E.O.C. Office of Fed. Operations Oct. 24, 2008)). In fact, the Commission squarely addressed the Thomas decision in its reply brief and explained that that appeal, which focused on hair length and sex differences with respect to allowing employees to use accessories to keep their hair above their collar, did not confront the issue of the comparative racial burden that compliance with the policy required. See EEOC Reply Br. at 27 n.5.

[3] The panel noted several times that it was bound by its interpretation of Willingham and Garcia. See slip op. at 23 (“[A]lthough [Willingham and Garcia] have been criticized by some … we are not free, as a later panel, to discard the immutable/mutable distinction they set out.”); id. at 24 (“We recognize that the distinction between immutable and mutable characteristics of race can sometimes be a fine (and difficult) one, but it is a line that courts have drawn.”). As explained infra, Willingham and Garcia (and their progeny) do not compel the result the panel reached. Regardless, to the extent the panel felt constrained by its interpretation of Willingham and Garcia, this Court is free to overrule those precedents when sitting en banc. See Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997) (noting the authority of “the Supreme Court or this court sitting en banc” to “judicially overrule a prior panel decision”).