Professor Wendy Greene Interview by Ayesha Casely-Hayford

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About Afro Archives

Afro Archives explores heritage and identity within UK society. It investigates images of black women through promotion of self-expression and confidence to be who we naturally are. This project seeks to promote and celebrate afro hair by having inclusive discussions about hair and hair-related experiences with people of all ages, backgrounds, cultures and creeds.

Big Thanks to Wandsworth Radio, in Battersea, for hosting us. Wandsworth Radio is a local Community Radio Station. It covers Battersea, Putney, Balham, Southfields, Earlsfield, Wandsworth Town, Roehampton and Tooting. The Station exists to celebrate the borough’s greatness. “Over 300,000 people call Wandsworth home and they deserve a community radio service providing local news and other content showcasing the people who live here”.

Creator Ayesha Casely-Hayford is an actress, award-winning voice artist and employment lawyer of Ghanian descent, born in London and raised in Kent. With her roots in law, specialising in discrimination, and as former chair of the board of trustees for The Act For Change Project, a charity campaigning for greater diversity in the arts, she is uniquely positioned to see the social, performative and legal issues facing black women in the UK today.

Photo credit: Helen Murray Photography

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Show Two Professor Wendy Green Transcript 8 March 2018 Listen: https://www.mixcloud.com/ayeshacaselyhayford/afro-archives-on-wandsworth-radio-withayesha-casely-hayford-guest-professor-wendy-greene/

Transcript:

ACH: Thank you so much for being with us Professor! We have Professor Wendy Greene with us. Professor, can you tell us a bit about yourself?

WG: Sure, I’m a Professor of Law at Cumberland School of Law in Birmingham Alabama and currently I’m a visiting Research Scholar at the University of California Irvine School of Law’s Centre on Law, Equality and Race and I largely specialise in Employment Discrimination Law, and Comparative Slavery and Race Relations Law in the Americas and the Caribbean with a specific focus on grooming codes discrimination or the ways in © 2018 Ayesha Casely-Hayford Photo credits: Africa Fashion & Robbie Spotswood

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which workplace grooming codes affect individuals on the basis of race, colour. gender, and religion.

ACH: And the grooming codes, is that what brought you to, I mean we met in September at Afro World Day, World Afro Day! I never know which way round they put that! And it was the Grooming codes that brought you to that event, is that right?

WG: Yes, that’s correct. So we were invited, three of my colleagues and I were invited, to World Afro Day in large part because of our advocacy related to African descendant women and girls who adorn natural hairstyles like braids, twists, locs, afros, and are discriminated against on those grounds. So Professor Kimberley Norwood, Professor Trina Jones, Professor Angela Onwauchi-Willig, and I were invited to participate in World Afro Day because we have engaged in advocacy around that issue, and Professor Angela Onwauchi-Willig, Professor Trina Jones and I were able to participate in World Afro Day advocating for broader understanding, of a more global understanding, of the ways in which African descendant women and girls are discriminated against because of the way our hair grows naturally out of our heads.

ACH: And the Chastity Jones case then, so talking about how hair grows naturally, what does that case mean to you in respect of your work?

WG: Sure so the EEOC vs Chastity Jones case and that’s a case whereby the Equal Employment Opportunity Commission, which is the Federal Agency that enforces our anti-discrimination laws here in the United States, and so one of the anti-discrimination statutes one of probably the most pivotal anti-discrimination statutes that we have on the books here in the United States, is Title VII of the 1964 Civil Rights Act. And So Title © 2018 Ayesha Casely-Hayford Photo credits: Africa Fashion & Robbie Spotswood

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VII prohibits discrimination, workplace discrimination, on the basis of race, colour, sex, national origin, and religion, and so in this case the Equal Employment Opportunity Commission decided to represent Ms Chastity Jones, an African American woman, who was adorning blonde dreadlocks when she was in the process of being interviewed for a position as a customer service representative with the employer and she went to a series of interviews. She came to the interview with a suit on, a blue business suit, and her loc’d blonde hair in a curly formation that we would call curly locs, and she went through a series of interviews. She was extended the job offer and at one point during the interview process she was asked if her hair was locs. To which she replied yes. And so at that point the Human Resources Manager told her that she would have to rescind the job offer if she continued to wear dreadlocks because dreadlocks, at least in her opinion, tended to get messy. Even though Ms Jones’s dreadlocks at the time would not be deemed messy. So in essence what the Human Resources Manager was asking Ms Jones to do was cut off her locs, or cut off her hair, as a condition of employment. Even though her hair did not bear any correlation to her ability to perform the job at hand, nor at that time did the HR Manager consider her hair to be messy it was just a notion that there was this propensity to be messy. So what Ms Jones did was that she filed a complaint with the EEOC and considered this a form of race discrimination violative of Title VII of the 1964 Civil Rights Act. So the EEOC then went on to represent Ms Jones in this case and challenge this decision this adverse employment action on the grounds that it constituted intentional race discrimination. And so this case is the most recent case decided by a Federal Court © 2018 Ayesha Casely-Hayford Photo credits: Africa Fashion & Robbie Spotswood

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deciding whether or not prohibitions against African American women’s hairstyles like locs, twists or braids, or afros constitute unlawful race discrimination.

ACH: Do you know Professor that is so interesting because you’ve just given me some facts which I had never found online and that's it they were blonde locs, so she’d dyed them?

WG: Presumably, yes she had coloured locs.

ACH: That for me changes it a bit, actually. It’s really interesting because I think as a look - it becomes something a bit different than if it was her natural hair colour. What do you think?

WG: You’re right. Very excellent point. I’ve also written about how African Descendant women have been discriminated against when they wear blonde hair. And so the presumption is, and I’ll go back a little bit too, often times when they are being discriminated against it's pursuant to sometimes subjective ideas about what is professional or what is natural to black women or what may be deemed excessive or unusual hairstyles or hair colours and so sometimes is based upon subjective ideals and other times it’s an interpretation, a subjective interpretation, of what we will call neutral employment practices or neutral grooming policy whereby the employer may mandate that individuals cannot wear hairstyles that are deemed unprofessional or excessive or hair colours that are deemed unusual and so what happens is in these cases like say in the blonde hair cases, you’ll have employers tell black women that they can’t wear blonde hair because they think that it’s unnatural.

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ACH: On them!

WG: And so in turn what it is implying is that only white women or non-black women can naturally have blonde hair and thus when a black woman wears blonde hair it is deemed unusual and thus violative of the grooming policy. And so what we see here is that, we've seen that in a lot of different cases here in the United States, whereby, for example Hooters, you might be familiar with Hooters Restaurant Chain? They did tell a black woman who was a server, or a waitress, at Hooters, that she needed to change the colour of her hair to what they considered to be a natural hair colour for black women when she had blonde highlights in her hair.

ACH: So we’re not just talking about the strictly commercial industries here?

WG: No, when we talk about this grooming code discrimination it’s happening in all different industries and all different types of industries. And so this is one of the reasons why I have been advocating for protection or at least recognition under Federal antidiscrimination law as it pertains to different forms of discrimination because it's pervasive and it’s happening at all levels of industries and all levels in let’s say workplace structures.

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ACH: Not to mention the fact that people of colour can have blond hair. I know some women.

WG: Exactly.

ACH: So it’s just factually inaccurate.

WG: Exactly. And naturally so.

ACH: And naturally so, exactly. Ok, so focusing back on the Chastity Jones case then, they did focus on this, they said they were looking at the locs they didn't attach it to the colour and that has not come through because as I said I've never known that, so that's not coming in the literature that's been publicly circulated. I think it's a bit messy because I think the colour must have had something to do with it but they said it was locs so therefore a white person with locs would be treated the same way that's their point right?

WG: Presumably yes. But we don’t know.

ACH: So are they trying to put locs in the same category of like, if someone has a tattoo?

WG: Exactly, exactly.

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ACH: And so are you saying hairstyle choice is not in the same, do you think locs are a hairstyle choice? I should ask that really.

WG: Well, it depends right? So there are some individuals who wear locs because of religion reasons or religious associations and so in that sense it may not be deemed as a choice in the very literal sense. Some individuals wear locs because that’s the way in which their hair naturally grows without manipulation. And it’s an easier way to maintain the natural texture of one’s hair. And also for some people say in a less expensive way or in a more natural or holistic or healthy way in order for individuals to don their naturally textured hair. So in that sense it may not be a choice because for some people they cannot wear their hair say in straightened hairstyles say by chemical relaxants or by extreme heat because it’s extremely damaging. And so the locs, really in effect, may not be as much as a choice as some people would like to call it simply by virtue of the person’s natural hair texture and the health consequences if they are to alter that hair texture. And so for other people it is a complete choice and just a matter of this is how I prefer to wear my hair because I feel beautiful wearing my hair in this hairstyle or I feel confident, in wearing this hairstyle and this is the hairstyle that I find most suitable for me.

ACH: So just as a final point on this then, we've got two camps one camp that says this is the hairstyle I prefer so in that situation if if that was Chastity Jones’s case this was her choice but there's another camp, I mean so that’s in the realm of having a tattoo so a workplace might say that’s not suitable, but then we've got the next camp which is saying actually this is a healthcare choice or could be, this is me being in my natural state. And we’re looking at which camp this is in right?

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WG: Right.

ACH: Ok cool.

WG: And so I think that the Federal Judges who have been deciding this case for the most part are viewing this as a choice not really thinking about the health consequences at all, or the health related consequences, and that this is something that is easy to be changed. Meaning that if you were to get rid of your locs, or your braids or your twists that this is something that is easy to change. And so there is a fundamental misunderstanding about our hair, underlying some of these decisions. And it kind of goes back to what the Courts have ultimately said here is that when we’re thinking about unlawful race discrimination under our Federal anti-discrimination laws that it is only unlawful race discrimination if an employer is regulating what they call an immutable characteristic. And according to the courts an immutable characteristic is something that you’re born with, that is difficult to change or unable to be changed or a trait that is possessed by all individuals who identify the same racially.

ACH: Right.

WG: Right, so it’s a really loaded kind of legal rule or deep legal doctrine, or what I call a legal fiction that is operating here in these cases so there’s a lot of misunderstanding as it relates to how the courts view natural hairstyles like locs, braids or twists and afros. So underneath this immutability © 2018 Ayesha Casely-Hayford Photo credits: Africa Fashion & Robbie Spotswood

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doctrine what the courts have said is that if an employer were to regulate an afro then that would constitute unlawful race discrimination “because an afro is an immutable characteristic of blackness”.

ACH: Yeah, that’s your hair texture.

WG: Right so that’s something you’re either born with, is difficult to change, or it cannot be changed. Or the idea that all African descendants have an afro or only African descendants have an afro. Which we know is not true, right?! So this is why I call it a legal fiction, this “immutability doctrine”, right? Afro’s can be altered. Not all African descendants are born with an afro not all African descendants hair can be manipulated into an afro or be viewed as an afro but nonetheless they have protected afros as a racial i.e. immutable characteristic for African descendants. Whereas if your hair naturally grows say for example if you have an afro and it naturally grows into locs or if you twisted your afro or you braided the afro then at that point it is no longer deemed a racial characteristic, an “immutable racial characteristic” but according to the court is deemed a “mutable cultural characteristic”.

ACH: Wow.

WG: And thus when an employer discriminates against twists, locs, or braids, that is outside of the bounds of Title VII’s protection against racial discrimination. So there’s this very interesting demarcation here between what constitutes unlawful race discrimination and what constitutes lawful discrimination even when we’re dealing with the same person with the same hair texture.

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ACH: Got you. And then we just get to the whole thing of choices therefore, and who is wearing dreadlocks. So we had a recent case in England of, do you know the band Little Mix?

WG: I don’t unfortunately.

ACH: Never mind! It’s a popular band here in the UK through these talent finding programs and this girl band was put together and one of them, a white woman, has recently had faux dreadlock braids put in and everyone was in uproar that this was cultural, well not everyone, a large community of people were upset that this was cultural appropriation. Are you guys facing these kinds of battles over the pond?

WG: Yes we are, recently, Kim Kardashian, I’m not sure if you’re familiar with this?

AH: Oh yeah

WG: But recently, Kim Kardashian posted a picture on Instagram where she was wearing blonde locs and she made a reference to Bo Derek braids. You know, that these were Bo Derek locs that she was donning, and so this too engendered a huge backlash here in the United States as it relates to notions of cultural appropriation and that she wasn’t giving proper credit to African Descendant women who have long been wearing braids and locs again either by choice or again by virtue of the way their hair naturally grows and so we’re definitely having those conversations here in the United States and definitely © 2018 Ayesha Casely-Hayford Photo credits: Africa Fashion & Robbie Spotswood

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there are some charges of cultural appropriation when individuals, like personalities, these super celebrities, are associating their donning of locs to white women.

ACH: So is it about who’s making it cool? So if a black person wears it, it’s kind of not really heralded and then a white woman does it and it’s like the coolest thing. Is this what the problem is?

WG: Right, exactly, so the idea is that black women wear their hair naturally and they are being stigmatised or they are being viewed as wearing hairstyles that are unkempt or not beautiful or not attractive whereas when white women don these same hairstyles they are being celebrated for doing so and being thought of as popularising the hairstyle. So they are not being subjected the same kind of say, negative treatment that black women are often subjected to when they are wearing their natural hairstyles like braids or locs or twists.

ACH: Got it. And then when we put that within the whole context of dominant cultures that’s the problem right? Cause you have a dominant culture taking credit for things.

WG: Right. And there’s a privileging effect behind all this that is definitely worthy of discussion and I do understand the points on both sides of the debate, that people should be able to wear their hair as they freely wish to do. However, there is a reality that when African descendant women and girls do attempt to wear their hair freely that they are subject to regulation, hyper regulation I call it as well as stigmatisation and thus negative treatment in an employment context as we see it can result in the loss of employment opportunities, it can result in harassment in the workplace it can result in say diminished compensation based upon ideals of professionalism and attractiveness © 2018 Ayesha Casely-Hayford Photo credits: Africa Fashion & Robbie Spotswood

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and beauty and thus it can result in some health-related consequences as we’ve talked about before namely some psychological and emotional and psychic costs that we often don't think about, which is not necessarily the case when say white women are wearing the same types of hairstyles or, getting back to choice, if they’re choosing to wear certain hairstyles the idea is that they have more freedom to do so without the kind of regulation that we see in the context of African descendant women.

ACH: Wow, I feel like there’s just not been enough research, like we don’t have enough statistics and information to properly look at this. Is that fair?

WG: There are a number of studies and there is research and writing on natural hair discrimination and also the consequences of this form of discrimination in the workplace. Ao recently the Perception Institute here in the United States published in February 2017, the “Good Hair” Study: explicit and implicit attitudes to black women’s hair. And in the study what we find is that black women are more likely to report spending more time on their hair than white women, black women are more likely to report having more professional styling appointments than white women, they spend more money on products for their hair than white women. They also report higher levels of anxiety about their hair and then greater levels of anxiety than white women reported, twice as many black women feel social pressure to straighten their hair for work and three times as many black women report that they disengage in exercise and other physical activities because of their hair in light of the monetary and temporal investment alongside the heightened professional and social pressures to maintain straightened hair. And we also find in the study that when white women were surveyed that they were more likely to view straightened hair styles as beautiful or attractive or professional than say natural hair styles like twists, locs, braids and afros and so this kind of study is really important, © 2018 Ayesha Casely-Hayford Photo credits: Africa Fashion & Robbie Spotswood

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and also an explicit kind of bias towards natural hair styles is being reported. And so this kind of study, we need more of these studies, but this study is really important in terms of illuminating the kind of stresses and anxiety that African descendant women are encountering as it relates to their hairstyles.

ACH: I really get what you’re saying Professor because we had a case here with a black woman who was asked to chemically straighten her hair in order to get a job, put where my original point was, is there enough research, and where you said what you're describing illuminates it because it's fine these things happen but then there isn’t recourse. So that case never made it to court but what would it fall under? You see, because the whole story got lost in a women and gender and sexism thing but it was more than that because they're obviously going to say they would ask it of a man. This whole black woman idea, which is what has happened with the Chastity Jones case right? Without having it properly identified what the discrimination is.

WG: Right. And so that’s a really excellent point because you’re talking about the kinds of burdens right? The relative burdens imposed upon African descendant women to alter their naturally textured hair in order to gain an employment opportunity or maintain an employment opportunity so what you’re telling me is that in that case the employer was imposing again a straightened hairstyle as a condition of employment © 2018 Ayesha Casely-Hayford Photo credits: Africa Fashion & Robbie Spotswood

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and in order to achieve that hairstyle often times what black women would have to do is put in a chemical relaxer that we know, or at least many of us know can be very damaging to African descendants hair as well as their scalp it can cause hair damage alongside hair loss as well as scalp damage and also African descendant women may straighten their hair with extreme heat so through either straightening comb or flat iron so we’re talking about 400 degrees of heat that’s being applied to one’s hair whether it be daily or weekly or every other day and that too can cause hair loss and hair damage as well as burns on our scalps and other places on our hair and head also to that effect in order to achieve that hairstyle it may encourage African descendant women to wear weaves and wigs. That too can be damaging to our hair and can lead to hair loss and scalp damage, so then when we think about the emotional distress of that right? To do these things in order to achieve this straighten hairstyle mandate and there’s a lot of emotional and psychological distress that may come along with that if we’re suffering that kind of harm. So those are things that are not generally captured in say the litigation around discrimination or rather the litigation whereby African descendant women are either forced or are expected to wear straightened hair as a condition of employment. But I will say in this case that the EEOC did try to bring that to light in their complaint, trying to stress to the Federal judiciary that there’s this time, there’s these expenses, as well as these health-related consequences, when we bar natural hairstyles in the workplace and in turn impose a straightened hair mandate or expectation as a condition or term of employment for African descendant women, which is not the case for white women, right?

ACH: Right.

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So that is something that they did try to bring to light in this litigation for the first time. And unfortunately the Federal Judges did not accept this. And I will say in listening to the oral arguments in this case, one of the judges thought that this idea that we would have to engage in, or many of us would have to engage, in chemical relaxants in order to straighten our hair may not necessarily be true because he had an African American law clerk, an African American woman who was a law clerk, who had straight hair, and she confided that she did not use chemical relaxers.

ACH: And this was his reasoning?! One woman that he’d spoken to?

WG: Yes.

ACH: Wow.

WG: So one woman! So all it takes is one woman.

ACH: This is what I mean by the lack of information, that’s the whole thing of well I’m not a racist because my best friend’s cousin’s brother’s black. Wow, you’re gonna judge it all on that?!

WG: To undermine the level of experience.

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incredible.

WG: Well it’s something that my students find really incredible too when they listen to the oral arguments. And so, I say that to say that the EEOC was trying to put forward this broader understanding most African descendant women, and girls experience as it relates to maintaining straightened hairstyles and essentially it just took one woman who didn’t have that experience to…

ACH: Knock that out the park!

WG: Right, in making that not a form of race discrimination.

ACH: Incredible. There’s so many different potential variables of the facts that would be so interesting to try because I mean we're dealing with, we can count on one hand the number of cases we’ve got in the world looking at this issue so I mean if the employers in this, in Chastity Jones’s case, had just asked her to dye her hair, to not have dyed her hair blonde what would that have looked like as a case? Or if it had been a white woman with locs what would that case have looked like? There’s just so many different ways this could have happened that we don't know what the law means and says.

WG: Well no, and you’re exactly right. And one of the issues with the case is that what the EEOC was really trying for was, this case was dismissed at a very early stage in litigation and so this is before they are able to ascertain all of the evidence to try and support the claim of racial discrimination. So you’re exactly right, how was this policy, this no locs policy being enforced? Was it only being enforced against African descendant women, or African descendants across the board? © 2018 Ayesha Casely-Hayford Photo credits: Africa Fashion & Robbie Spotswood

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ACH: So the last thing I want to ask you then, if it’s not too a tricky question to answer, is what do you think are the main things we can take away from this case?

WG: Oh, that’s a great question. What can we take away from this case. Well right now what we can take away from this case at least in the United States under Federal antidiscrimination law. At this moment, we still no longer have protection against discrimination as it relates to certain natural hair styles like locs, braids, and twists. However, there is protection under Federal anti-discrimination law if an employer discriminates against an individual, an African descendant, namely who wears afros. So what that means to me is that this gives employers a huge amount of prerogative and freedom and authority to regulate African descendant women as well as men in the ways in which they wear their hair. And much more freedom than I would say for other individuals who attempt to wear their hair freely. And so it does subject, probably more specifically it will subject and does subject African American women, African descendant women to heightened levels of scrutiny and harassment and other forms of adverse treatment on the basis of race because of their hair. And so this is affecting not just Ms Jones but countless African descendant women who are donning their hair © 2018 Ayesha Casely-Hayford Photo credits: Africa Fashion & Robbie Spotswood

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naturally for a variety of reasons. And their ability to do so without regulation, and their ability to do so when there is no legal recourse if they are discriminated against.

ACH: Amazing. Do you know what I was just hearing there, I was hearing, like yeah, sure this is my choice, however I wear my hair, this is my choice. But these are what my choices are, and me as a black woman, you are having more control on my spectrum of choices than someone else as a white woman’s spectrum of choices.

WG: Right, exactly, and so our choices are very constrained, right? They’re very limited in light of these cases that impose the immutable doctrine. And so one of the points I make in my scholarship and it goes back to this conversation we’ve been having or this dialogue we’ve been having, is that on the one hand when I’m trying to wear my hair freely and as it grows out of my head I am limited to only doing so in a short coiled afro type hair style. If I decide to colour my hair I can only do so within a certain type of limits right? I cannot necessarily adorn say blonde hair if it's not something that I am born with and so on the one hand when I'm wearing my hair in a way that may be deemed maybe too black or associated with blackness I am limited to only one type of hairstyle whereas if I'm wearing a hairstyle or hair colour that is deemed maybe too white i.e. blonde then an employer can also restrict me from doing so and it can do so lawfully. So a very narrow space in which African descendant women can wear their hair unless it is straightened.

ACH: Amazing. Thank you so so much Professor. I wish I was in your class, I’m telling you. I would be there first in my seat.

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ACH: Yeah, you see this is where I’ve been going wrong. Thank you so so so much for your time and your expertise it's just been fascinating. And I'm going to put Professor Wendy Greene’s links to her publications in our podcast transcript after.

WG: And thank you so much for this invitation to speak about this issue that as you can see I’m very passionate about and also trying to gain greater levels of awareness and hopefully one day legal protection. And also you can follow me on Twitter @professorDWendy https://twitter.com/ProfessorDWendy ACH: Perfect. Thank you! References & Links: https://www.samford.edu/cumberlandlaw/directory/Greene-D-Wendy https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=877329 https://www.samford.edu/cumberlandlaw/directory/files/BNAs-Employment-DiscriminationReport.pdf https://concurringopinions.com/archives/author/wendy-greene https://perception.org/goodhair/