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PAULE~Z M.CALDWELL. I. O F A. Rediscovering M y Hair


my earliest mirrored rejection when there was no beginning and Ifim knew that the person who laughed at me and cried with me and stuck out her tongue at me was me. I want to know my hair agak tire way I knew it before I knew that my hair ir me, before I lost the e h t to me, before I knew that the burden o f beaury--or lack o f it-for an entire race of people could be tied up with my hair and me I want to know my hair again, the way I knew it before I kneu Sambo and D i c k ,Buckwheat and Jane, R i q v and MU Scarlett Before I knew that my hair could be wrongthe wrong color, the wrong texture, the wrong amount of curl or straight .Before hot combs and thick grease and smelly-burning &e, all guaranteed to tramform me, to silken the coarse, resistent wool that represents me. I want to know once more the time before I denatured, denuded, denigrated, and denied my hair and me, before I knew enough to wony about edges and kitchens and burrows and knots, when I was still a friend of water-the rain's dancing f water, a swimming hole's splashing water, a hot. muggy day's drops o mitry invisible water, my own sal@,weary. penpiiring wazer. When will 1 cherirh my hair again, rhe way my grandmother cherithed it. when fascinated by its beauty, with hands carrying centuriesdd secrets o f adornment and craft.nvomanship. she plaited it, twisted it, cornrowed it, jinger-curled it, olivcsiled it, on tire growing muon cut and f gold inlaid with semiprecious shaped it, and wove it like fine strands o f the stones, coral and ivory, telling with my hair a lart-found story o 'people she carried inside her? Mostly, I want to love my hair the way I loved hers when as gmnddaughter among grandsons I stood on a chair in her m m - h e r kitchmbed-livingdining room-und she let me know her hair, when I wmbed
Copyright 0 PIUkKte M. CIjdwcIl 1991. Professor of h a t ,New York Univadty. An earlier version of this h a y was prrrentcd U , t h e first Cntiul Thmy Workshop, sponsorzd by the Institute for Legal Studies, UnivCrtity of WIvwrsia School of Law, luly 1989. My tMu to the pUticip.nt$in th.1 workshop. Th.nlrr Jto to m y others, including members o f the Nonbeut corridor Callcctive of Bluk Women k w Professon. Eric Qecle, Esq.. lrcqucline Bema. Eq., urd to m h usistmts Srnyr Hill and Gildr Williams. New York University h w Scbool CLUa of 1988 .ad 1990. rrrpedivtly.

I want to know my hair again, to own it, to delight in it again, to recall




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and patted it from the crown of her head to the place where her neck folded into her shoulders, caressing steel-gmy strands that fmmed her forehead before falling into the soft, white, cottony temples at the border o f her cheekbones Cotton Cotton curled up in sofi, fizzy p u 5 l l r around her face Cotton pulled out and stretched on top of her head into Sunday pompadoun: Cotton, like the cotton blooming in August in her tiny cotton field Cotton, like the cotton that filled the other mom in her house-the cotton mom-the storehousefor Septembers harvest. a eradle to shield her pickings from wind and min, to await baling and ginning and cashing in Cotton, which along with a cow, a pig and a coop o f chickens allowed her to eke out a husbanddead, children-gone independence in some desolate place, tmpped in the bowels of segregation Here, unheard, unseen, &e, she and her beauty and her hair could not be a threat to anyone.

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up an in clearly b But the 1 black wc common tiny brai wh. outraged plain sor I resente appropri tioned 0: marvelet continue can l i f e . M Y e n untL

B. On Being the Subject of a Law School Hypothetical The case of Rogers v. American Airlines 1 upheld the right of employers to prohibit categorically the wearing of braided hairstyles i n the workplace. T h e plaintiff, a black woman, argued that American Airlines policy discriminated against her specifically as a black woman. In effect, she based her claim on the interactive effects of racial and gender discrimination. The court chose, however, to base its decision principally f race. on distinctions between biological and cultural conceptions o More importantly, it treated the plainti5s claims of race and gender discrimination in the alternative and independent of each other, thus denying any interactive relationship between the two. Although Rogers is the only reported decision that upholds the catcgorical exclusion of braided hairstyles,* the prohibition of such styles in the workforce is both widespread and longstanding. Protests surrounding recent cases in Washington, D.C. sparked national media attention. Nearly fifty women picketed a Hyatt Hotel, and black political leaders threatened to boycott hotels that prohibit black women from wearing braids. Several employees initiated legal action by filing complaints with federal or local fair employment practices agencies; most cases were set~~ ~

1. 527 F. Supp. 229 (S.D.N.Y.1 9 8 1 ) . 2. Rogcn relied on Cuswell v. Pachford Hap., 27 F a i r Empl. Pnc. Cas. (BNA) 698 (N.D. 0.. 1981) (1981 WL 2 2 4 ) . In c O m f . 4 tbe employer d i r h u g d the p b t S for w a r i n g beads woven into 8 brsided h.irrtyle. The prohibition applied to j e w e w and other items and was jurtidcd by ufery precautions for anployas working in 8 bmfitd for pychutnc and SubrUnce-~bUting patients. SipniBuntly, the court noted that the hospital did not c ~ t e g o r i prohibit ~~y the wearing of a t h a braided or Afro hrintyla. 3 . See Shipp, Braided Hair Style At 1 . e in Protests Ow? D e Gdes N.Y. Tima Sept. 2 3 . 1987. 8t C14, 1 2 0 1 . 1.




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asked me after class to explain the decision. I promised to take up the case when we arrived at that point in the semester where the issues raised by Rogen fit most naturally in the development of antidiscrimination law. Several weeks passed, and the student asked about Rogers again and f f answering her again (always privately, after class); yet I always put o until some point later in the semester. After all, hair is such a little thing. Finally, while participating in a class discussion on a completely unre lated topic, the persistent one's comments wandered into the forbidden area of braided-hair cases. As soon as the student realized she had publicly introduced the subject of braided hair, she stopped in mid-sentence and covered her mouth in embarrassment, as if she had spoken out of turn. I was finally f o r d to confront what the student had obviously sensed in her embarrassment. I had avoided private and public discussions about braided hair not n the because the student had asked her questions at the wrong point i semester. Nor had I avoided the subject because cases involving employer-mandated hair and grooming standards do not illustrate as well as other cases the presence of deeply-ingrained myths, negative images, and stereotypes that operate to define the social and economic position of blacks and women. I had carefully evaded the subject of a black woman's hair because I appeared at each class meeting wearing a neatlybraided pageboy, and I resented being the unwitting object of one i n thousands of law school hypotheticals.

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C. why Would Anyone Want to Wear Their Hair That WuyP

Discussing braided hair styles with students did not threaten me in places where I had become most assured. I was personally at case in my professionalism after a decade of law practice and nearly as many years as a law professor. I had lost-or become more successful in denyingany discomfort that I once may have experienced in discussing issues of race and gender in the too few occasions in the legal profession devoted to their exploration. I had even begun to smart less when confronted with my inability to change being the only, or one of inevitably too few,
7. According t o Cheryl Trtum, the Hyrtt's p e n o ~ d rnaMgCr, I W O U uid: ~ ~ "I M ' t understand why you would want to wclt your hair like b t mywry. What would our guests think if we dowed you dl to w a r your hair Iikc that? Shipp, S U ~ wte M 3, at C14. Employm often d y on "customer prefennce" to justify the imporition of & requircmmtr on rmployco o rt o restrict, 011 the grounds of nce or sex, the persons who un occupy e e d n jobr. This jurtidcrth t y p i d y mounts to nothing more than the u p m i o n of L e prcferrnca o f the employer or I subterfuge for the exploitation o f the h g a ofrmployecr for m o m i c dvmtage. See Binder, Sex Discriminotwn in the Airline Indutry: ntle WI FJying High 59 CALIF. L. REV. 1091 (1971); sw a h infio notes 63-71 and accompanying text.

dele that cou tion me, the bilit clas

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tions of competing beliefs about white and black womanhood and in the interstices of racism and sexism. Our silence broken, the class moved beyond hierarchy to a place of honest collaboration. Turning to Rogers, we explored the question of our ability to comprehend through the medium of experiencelo the way in which a black womans hair is related to the perpetuation of social, political, and economic domination of subordinated racial and gender groups; we asked why issues of experience, culture, and identity are not the subject of explicit legal reasoning. This Essay relates some of what we have learned and what we need to know. Hair seems to be such a little thing. Yet it is the little things, the small everyday realities of life, that reveal the deepest meanings and values of aculture, give legal theory its grounding, and test its legitimacy. 11. To CHOOSE MYSELF:


c I L


A. A Black Womans Hair, A Black Womans Place

SUNDAY. School is out, my exams are graded, and I have unbraided

my hair a f e w days before my appointment at the beauty parlor to have it braided again After a year in braids, my hair is healthy again: long and thick and cottony soft. I decide not to french mll it or mist it or pull it into a ponytail or bun or cover it with a scarf: Instead, I comb it out and leave it natural, in a full and big %Angela Davis afm qyle I feel f i l l and big and regaL I wdk the three blocks f m m my apartment to the subway. I see a white male colleague walking in the opposite direction and I wave to him f m m a c m the street He stops, squints his f the sun and stares, tving to figure out who has eyes against the glare o greeted him. He recognizes me and starts to cross over to my side of the street. I keep walking fearing the possibility of his curiosity and needing to be relieved of the strain of explanation MONDAY. My hair 13 still unbraided, but I blow it out with a hair dver and pull it back into a ponytail tied at the nape of my neck before I go to the law schooL I enter the building and run into four white female colleagues on their w y out to a white female lunch Before I can say hello, one of them b l u k out. Yt I S weirdf Another drowns out the first: You look so young like a teenaged The third invites me to join themfor lunch while thefouhth stands silently, observing my hair. I mumble some excuse about lunch and, interject, almost apologetically,
10. The experience of racist. public degdation on account of hair texture i s not cxclurive to black women. Since I began teaching Rogers a d hues that relate t o the intersection o f race and gender, m y white women students have told me (always privately) that they have km dispuagcd and have sdkrcd low selfateem kuw the texture of their hair is too close to that of a black w m m . Thir disparagement and public ridicule t@iuUy begins for them n e u the age of pukny. when iYues of beauty, rxurlity, and desirability arc of singular importance.

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are interlocking, mutually-reinforcing components of a system of dominance rooted in patriarchy. No significant and lasting progress in combatting either can be made until this interdependent aspect of their relation is acknowledged, and until the perspectives gained from considering their interaction are reflected i n legal theory and public policy. Black women are the immediate, although not exclusive, physical and material representation of the intersection of race and gender,I3 Progress against racism and s e x i s m requires in addition, therefore, not only an eradication of negative stereotypes about black womanhood and their associated behavioral consequences, but also a recognition that theories of legal protection that affect the material circumstances of black women are not marginal to theories regarding race or gender, but rather are central to both." Rogers is an exemplar of employment discrimination cases that involve black women's physical image, negative stereotypes of black womanhood, and the intersection of race and gender. The assumptions underlying Rogers also appear in other areas, including those in which facile conflations of biology and culture combine with the intersection of race and gender to condition reproductive and lifestyle choices arguably more fundamental than those of hairstyle.1s

C. The Limitations of the Assumptions o f Race-Sex Correspondence and Independence

There is clearly a legal assumption of a race-sex correspondence or of a race-sex parallel. Women and blacks share a common history in terms of some elements of their legal status, although actual dSerences i n their social status and attitudes toward them were, and are, substan13. See infm text .ccompmying nota 97-99 for the r s k t s o f rrce-gender inMMion on black men Md White w~!~uI. 14. Questions .riting u the intersection o f race and gender h v e only recently been a d d d by legd scholars. See g m e m l ~Austin, shpphln Boundt, 1989 Ws. L REV. S39; Crmshw, Lkmaginalizing the Intenution o f Race and SU. A B k k Feminist Critique o/Antidknmination Drwmnc Feminist 7 R e o v and Antimist Politics 1989 U. CHI. LEGAL E 139; Harris, Race and Eucnrialism in Feminirr Lqal Zkwy, 42 STAN. L. REV. 581 (1990). This late attention to the intcncctiw of race and gender is not uanhtd to the low numben. and experiences of, black women professors in the legal d m y . For an analysis of the relathship between the experiences of black women lcademicr and the development of black feminist thought, yt collinr. l7w sorirl Construction o f Black Feminist Tlrought in BLACK WOMEN IN AMERICA 304 (1988). 15. See infm text rocornpanying nota 29-32. The decision whether to cluracterize a dispute u involving grooming or some .rgurbly more fundamental right hu sigd3-t consequenca under antidkdmilution kw. The c b . n c t m ' u tion as "grooming" often signals I trivi.liution of the c l h and a conclusion t h t no kfly-protected mployment and economic nghu ue involved. See, rg,, CrrR v . Mctrornedir. Inc., 766 F.2d 1205 (8th C i r . 1985). But the aesthetic order of a society YU the norms of bauty and rcceptsbiity of the domirunt group .s the standard; thit aesthetic order i s ured. i n turn, t o justify the superior z0ci.l and wnomic position of the dominant RTOUD.

tial. For m ism as equi considering sumption h ing race an( function ar resistance t cone1 ists an e q u tiveness.'* of emancip festations i. and sexism race lines, i of race anc Like I distinctive1 the develo] gender. C gender ma ceptuakk And if, th treat the C hierarchie: derived frl





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pendence will ultimately serve both. Any starting point w i l l suffice ifour objective is to end domination based on race, gender, or both.21 Problems arise in the development of legal theory and social policy when the possibility of other relationships between race and gender, such as intersection, are not considered. Black womens issues slip through the cracks of legal protection, and the gender components of racism and the race components of sexism remain hidden.= . The interactive relationship between race and gender is unmistakable. Its existence f l o w s factually and logically from an examination of the structure of dominance-historically and contemporady-and the stereotypes, myths, and images about race and gender, and in particular black women, that sustain it. It is perplexing, therefore, that those wmmitted to eliminating dominance based on race or gender, or both, wntinually fail to acknowledge or derive liberating strategies based on the fact of race-sex interaction.% Cases arising under employment discrimination statutes illustrate both the operation in law and the effect on the development of legal theory of the assumptions of race-Sex correspondence and difference. These cases also demonstrate the absence of any consideration of either race-sex interaction or the stereotyping of black womanhood. Focusing on cases that involve black female plaintiffs, at least three categories emerge. In one category, courts have considered whether black women may represent themselves or other race or gender discriminatees. Some cases deny black women the right to claim discrimination as a subgroup distinct from black men and white women.25 Others deny black women the right to represent a class that includes white women in a suit based on sex discrimination, on the ground that race distinguishes them.26 Still other cases prohibit black women from representing a class in a race discrimination suit that includes black men, on the ground of gender differ21. But see King. s u p note 19. u 268 (suggesting that a put of the hurctjcm of purUelism i s to mask substantive. if not qualitative, dflcrmca between racism and scxim as well u to make the e x p e r i m o f black women invisible). 22. Ser SLIP?lNG THROUGH THE W C U : l h E STATUSOF BLACK WOMEN (J. M d v a u r & M. Simm, eb. 1987). 23. See H . CARBY, Slaw and MisIdeoiogiicc o f Womanhood under Slavery, in RECONm U C T I N G WOMANHOOD 20 (1987). 24. S e e King, supm note 19, at 27686 (dircussing invlrafial politics and politics among

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25. sot. e g . , DeGritrmrcid v. G e n d Motors Assembly Div., 413 E Supp. 142, 145 (ED. Mo. 1976) (Title VI1 did not create I new subutegory of black women w i t h standing i n dent of black mala). 26. See, eg., Moore v. Hughes Helicopter, Inc.. 708 F . 2 d 475, 480 (91h Cir. 1983) (certified c b includes only black fades, ss plaint8 black f a d e inadequately represents white f a d s

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attractiveness-including a subtle, and often not so subtle, emphasis on female sexuality. The latter two categories sometimes involve, in addition to the intersection of race and gender, questions that concern the interaction of race, gender, and culture. The failure to consider the implications of race-sex interaction is only partially explained, if at all, by the historical or contemporary development of separate political movements against racism and sexism. Rather, this failure arises from the inability of political activists, policymakers, and legal theorists to grapple with the existence and political functions of the complex of myths, negative images, and stereotypes regarding black womanhood.33 These stereotypes, and the culture of prejudice that sustains them, exist to define the social position of black women as subordinate on the basis of gender to all men, regardless of color, and on the basis of race to all other women. These negative images also are indispensable to the maintenance of an interlocking system of oppression based on race and gender that operates to the detriment of all women and all blacks. Stereotypical notions about white women and black men are not only developed by comparing them to white men, but also by setting them apart from black women.

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only. T b ways ope a subordj to ackno n blacks i and sex t cluded tt ground. as did its of cases i The discrimin black wo groups F proach p against b antidiscri recurring and ecOn the g r o q ployment Perpetuat

D. The Rogers Opinion

The Rogen decision34 is a classic example of a case concerning the physical image of black women. Renee Rogers, whose work for American Airhks involved extensive passenger contact, claimed that Americans prohibition of braided hairstyles in certain job classifications n general, and as a black woman discriminated against her as a woman i in p a r t i c ~ l a r .The ~ ~ court did not attempt to limit the plaintiffs case by forcing her to proceed on either race or gender grounds,36 nor did it create a false hierarchy between the two bases by treating one as grounded in statutory law and the other as a plus factor that would explain the
33. &e. ~ g H. , W Y . W m note 23, at 27. 3 4 . Rogerr v. American Airlina, Inc.. 527 F.Supp. 229 (S.D.N.Y. 1981). 35. Id at 231. Rogm sued under the thirteenth amendment, 42 U.S.C. 0 1981 (1988), and Title VI1 of the Civil Rights Act of 1964. 42 U.S.C. $0 2ooOt (1988). T h e court disposed of the thirteenth amendment claim on the ground that ,the amendment prohibits practicer that constitute hdges and incidents ofskvuy. Unless the pluntiff could sbow that she did not have the option to leave her job, her claim could not be mainuined. Rogers, 527 F.Supp. at 231. The court .Ira noted that the Title VI1 and vetion 1981 claims were indistinguishable in the circumstances of the case and were, therefore, trutcd together. Id 36. For UI uunple of a CLY refusing to allow a plaintiff to proceed rn a black woman, M independent rubutegory protected by Title VII, see DcGdmreid v. General Motors Assembly Div., 413 F. Supp. 142 (E.D. Mo. 1976). The district courts limitation on the ability of b k k women to rue on the h i s of race and sex was lifted on appeal. DeGdenreid v. G c n d Moton kucmbly DIV.,558 F.2d 480 (8th Cu. 1977).




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The court gave three principal reawns for dismissing the plaintiffs claim. First, in considering the sex discrimination aspects of the claim, the court disagreed with the plaintiffs argument that, in effect, the a p plication of the companys grooming policy to exclude the category of braided hairstyles from the workplace reached only women. Rather, the court stressed that Americans policy was even-handed and applied to men and women alike.40 Second, the court emphasized that Americans grooming policy did not regulate or classify employees on the basis of an immutable gender characteristic.41 Finally, Americans policy did not bear on the exercise of a fundamental rightf2 The plaintiffs racial discrimination claim was analyzed separately but dismissed on the same grounds: neutral application of Americans anti-braid policy to all races and absence of any impact of the policy on an immutable racial characteristic or of any effect on the exercise of a fundamental right. The courts treatment of culture and cultural associations in the racial context bears close examination. It carefully distinguished between the phenotypic and cultural aspects of race. First, it rejected the plaintiffs analogy between all-braided and Afro or natural hairstyles. Stopping short of concluding that Afro hairstyles might be protected under all circumstances, the court held that an all-braided hairstyle is a different matter. It is not the product of natural hair growth but of artif i ~ e . Second, ~~ in response to the plaintiffs argument that, like Afro hairstyles, the wearing of braids reflected her choice for ethnic and cultural identification, the court again distinguished between the immutable aspects of race and characteristics that are socioculturally associated with a particular race or nationality.u However, given the variability of so-called immutzible racial characteristics such as skin color and hair texture, it is dficult to understand racism as other than a complex of historical, sociocultural associations with race. The court conceived of race and the legal protection against racism almost exclusively i n biological terms. Natural hairstyles-or at least some of them, such as Afros45-are permitted because hair texture is immutable, a matter over which individuals have no choice. Braids, however, are the products of artificea cultural practict-and are therefore mutable; i.e., the result of choice. Because the plaintiff could have
black woman alleges diriimination on race and sex grounds and the pound disction is not involved. Scc Shoben, snpm note 38. 40. Rcgm 527 f .Sum. at 231. 41. Id 42. Id 43. Id. i t 232. 44. Id 45. Src infm note S9 (discwing other natural h a i r s t y l e s ) .
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to the nations or the worlds culture, they copy the fads of whites. On the other hand, whites make fads of black culture, which, by virtue of their popularization, becomo--like all pop**--disposable, vulgar, and without lasting value. Braided hairstyles are thus trivialized and protests over them made ludicrous.49 To narrow the concept of race further-and, therefore, racism and the scope of legal protection against it-the Rogers court likened the plaintiffs claim to ethnic identity in the wearing of braids to identity claims based on the use of languages other than English. The court sought refuge in Garcia v. GZoor, a decision that upheld the general right of employers to prohibit the speaking of any language other than English in the workplace without requiring employers to articulate a business justification for the prohibition.% By excising the cultural component of racial or ethnic identity, the court reinforces the view of a homogenous, unicultural society, and pits blacks and other groups against each other in a battle over minimal deviations from cultural norms. Black women cannot wear their hair in braids because Hispanics cannot speak Spanish at work. The court cedes to private employers the power of family patriarchs to enforce a numbing sameness, based exclusively on the employers* whim, without the obligation to provide a connection to work performance or business need, and thus deprives employees of the right to be judged on ability rather than on image or sound.5* Like Rogers, the Garcia case is a fascinating study of the extent to which antidiscrimination law perpetuates the allocation to employers of a kind of property right in the peisons of women and minority employees. Out of business necessity, thirtysne of the thirty-nine employees of the n the area company in Garcia were Hispanic because the population i served by the business was seventy-five percent Hispanic. Most of the employees were bilingual because many of the companys customers wanted to be waited on by a Spanish-speaking person. The employer prohibited employees from speaking Spanish on the job unless they were speaking to Spanish-speaking customers. Hector Garcia, a MexicanAmerican employe, was fired for responding in Spanish to a question from another Mexican-American employee about the availability of an

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49. For further examples of cultural cooptation. a c e Williams, Metro Brodasting, Inc. v. FCC: Regmpinp in Singular Times 104 HARV. L. REV.525, 536 (1990). 50. G u i r v. Glmr, 618 F.Zd 264,267-69 (5th Ci. 1980); el: Gutierra v. Muni~ipd Gun, 838 F.2d 1031, 1 W 1 (9th Cir.), mcard. 409 U.S. 1 0 1 6 (1986). 51. See Matsuda, Voice o f America Accent Anridircrminorion. ond a luritpnrdence for the Lust Reconsrnrcrion. 100 YALE L.J. 1329 (1991). importance i r Title VI1 . 54. Id a of the policy. guiscd them d




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thick hair, I also intend to aggravate my misdeed through the ludicrous f mortar board and nappy hair. Madame C J Walk+ juxtaposition o will surely turn over in her grave. My younger sister has worn an Afm for almost a year, but I would not be expected to stoop so low. I will graduate at the top o f my class receive more honors than I know what to do with, and take u job that will surely bring prestige to my family, my law school, and my race. My hair undoes all of this recalling for my mother her initial confusion over my decision to study law and now drawing public attention to her obviousfailure us a parent for not having f hair as a mechanismfor suwiwl impressed upon me the importance o I might as well have been tan Lcillegitimatess child Early 1970s. Another picture in thefamily album My mother is beaming, smiling across a generation She is looking down at my nephew, our familys J k t next-generation child, an outof-wedlock legitimization of our eternal strength, hope, and StrrvivoL My mother is now beautifillyA f m d , and her smile isfilled with pride, love, and understanding. 1985. I n a few days I will teach in a four-duy workshop forffty black f their women The participants have been chosen primarily because o status in the coprate world o f businw and finance. My feeling of perfonnonce anxiety seem p a t h overshadowed by feelings of happy excitement and expectancy at the prospect of navigating my peers through the murky waters o f possibilities and pitfallsfor black women in leadershrj,positions I arrive at the beauty parlorfor the p o m i n g o f my hair, which, afier u year in braids has grown to my shoulderr Time is short and the hairdresser is late. m e n she amws on impulse, I decidc to forgo braids and ark her to apply a chemical straightener to my virgin hair. I return to w r k a day later and the 5ignificontother o f a mole colleague addresses me in that chastising, condescending tone of voice reserved for slaves and w m e n in domestic service: Every time I see you, youve done something else to your hairf Days later I am-ve at the workshop site and greet the participants, my hair arranged in a style reminiscent o f my former for-profit corporate s e g Over the next four days I am frequently complimented for my competence, unusual insigh& and mastery of subject matter, but
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SEX I N AMERICA 187-89 (1984). CJ.Walker, born Sarah Breedlove in 1867, w u the hrrt black f a d e millionaire in the United States. She made her forrune selling hair products--puriCUluly luir growers md straighteners-for black women. She also redesigned the hot comb for use by bkck women t o straighten their hair. She ultimately established factories, hbomtar i a , and tnining schools, employed thounds of black women around the world, and d e pouiblc the employment and small busineyCSo f many more. Madame Walker rem& a conu0wrsi.l figure i n black history, however. because some b v e attxibuted her succcs~ to the desire of black women for stmight, &UCaSiM-typc hair, md others have adhered to Madame Walkers asesment focusing on cur[ing] d p when they were i n a frightful oondition. Id at 188. Whether she or her climrr w m concerned with straight hair, they surely were concerned with the lmgth of hair. For example, her comp.lrys 1924 yorbooL described her hair products: Many penons who had las than a fingers lmgth of hair whm they began using it, their hair grew sixteen inches in less thu, three YM [and] the products improved the scalps of persons . . whore hair v u short and stubby d 1 their live. Id at 188-89.

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3 X I d YIVH V



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cal characteristics correlating with race lies not only in the ability of its true nature to be disguised, but also in its susceptibility to external control. Because the appearance of hair and some of its characteristics are capable of change, the choice by blacks either to make no change or to do so in ways that do not reflect the characteristics and appearance of the hair of whites, represents an assertion of the self that is in direct conflict with the assumptions that underlie the existing social order. Such selfassertions by blacks create fear and revulsion in blacks and whites alike.) During the 196Os, in the midst of the violent upheaval and the rapid social change that characterized that period, many blacks chose to wear natural or Afro hairstyles as a celebration of self-esteem, a rejection of the shackles of racist oppression, or a claim to cultural identity. Those who chose Afro hairstyles faced stiff Qpposition,similar to the opposition that today confronts those who choose braids, including the loss or refusal of employment. In the case of black women, few escaped implicit associations among full Afro hairstyles, unpopular political views, and uncontrolled and dangerous sexuality, growing out of national media coverage of the hunting down and subsequent trial of the activist and scholar Angela Davis. Today, Afro hairstyles-or at least some of them-are widely accepted in all forms of employment, although the extent of their legal protection is far from They are considered by many to reflect personal style-aesthetic choiceand are not generally associated with the politics of the period of their origin. However, the rationalizations that accompanied opposition to Afro hairstyles in the 1960s-extreme, too unusual, not businesslike, inconsistent with a conservative image, un58. Some black institutions prohibit their employee to w a r h i d e d U t y l a .
Job counsellors
at traditionally black collega oftm advise students to avoid African-indueneed styla when seeking employment. See Shipp, supm note 3, at C14; see o h infm text accompanying n o t a 87-92 (m-

profession itant), unl braided h that are close imr p u b l i c . @


In H
to Ei

By 5 mental ri applicatic erences, i ing coda close attt denced ii permissil

1. The Rag from its en bane plaintiff men, frc tionale ( adopted underst found
6 0 .s 61. 5 62 1 Disti other in vi( mar) to n

mission by blacks of the culture of prejudice brsed on hair texture and skin color). 59. For CL# upholding the right to w a r Afro hairstyles, see Jenkins v. Blue Crorc Mut. H a p . Ins.. Inc., 538 F.2d 164 (7th Cir. 1976); E.E.O.C. Dcc. No. 724979,4 Fair Empl. P a .Cas. (BNA) 840 Feb. 3, 1972). Not+ however, that in Rogers in drawing a diztinction between Afro and braided hairstyles. the court intimated, but stopped shon of stating with any conviction, that Afro hairstyla ue legally protected. Rogers 527 F. Supp. at 232. Also, even i f protected from utcgoriUt exclusion, it is not cleu whether and to what extent Afro hairstyla m y be subjected to different regulation. For uunple, cows permit anployen to esablish diUerent hair length regulations for men and women justified by commonly accepted gender-hstd rocid noms. See infm note 62. It is not clar, however, whether coua would permit employers to prohibit blacks from wuring a long or big Afro hairstyle such u the one associated with Angela Davis on the ground that only short Afro hairstyla ue appropriate business attire. F i d y , although the term Afro may advert to a particular natural hairstyle popularized in the 19601. the g r u t v u k t y of natunl hairstyles contemporvily worn by b k k r ue not subsumed under the term Afro.

Id at 10

gender tt fundame 63. Souther. F.2d 11





P O I . 1991:365


mechanical application of Willingham in Rogers is, therefore, misguided.& A significant body of authority, not considered in Rogers, finds a violation of antidiscrimination law in the application of grooming codes and certain other employer rules6s--especially in cases that involve women as These cases are perhaps best explained by the fact that courts recognize the reality of womens employment disadvantage. Notwithstanding the gender-neutral terms of antidiscrimination law, the distribution of employment advantages between men and women is not symmetrical with regard to everything ranging from initial access, to occupational distribution, to enjoyment of the economic and psychic benefits of work. Not all courts have been content, therefore, to rest their decisions on grounds of neutrality, mutability, or fundamental rights-the justifications central to Rogets 67 Rather, they have based their decisions on the prohibition of economic, psychological, and dignitary injuries to women growing out of demeaning stereotypes regarding female characteristics, abilities and roles in society, prejudicial notions about female attractiveness, and the use of female sexuality for business advantage.6a Where such injuries are apparent, courts have not required women to relinquish control over their physical images or other senses of themselves in the service of an employers desired business image. Thus, for example, a policy that prohibits men, but not women, from wearing longer than shoulder-length hair is not treated in the same way as a policy that prohibits a married woman from using her unmari
f :
64. See. rg., Allen v. Lovejoy, 553 F . 2 d 522 (6th C i . 1977) (rejecting the employers attempt to apply Willinghorn principles to a policy prohibiting mvried women from using other than their husbands surnames even though the choice of name is neither immutable nor critical to the r i a t to marry). 65. It is easy, even tempting, to make 100 much of the fact that a puticular practice can be characterized as a grooming regulation. Decisions in cases such as R q y n should not k understood colely in CompUison with cases involving grooming codes. but in relation to a wide vrridy o f practices involving sociocultural .ssochtions. In addition, too much emphasis can also k placed on distinguishing cases such as Rogen from those that involve oven disparate treatment of all women compared to all men. see Cam011 v. Tdman Fed. Sav. & Lou!Aun. 60,F.2d 1028 (7th Cir. 1979), or isubgroup of women compared to I similarly situated subgroup of men. &e supra notes 37 k 62 (plus discrimination). An essential element underlying 1of t h m cases is a focus on demeaning stereotypes that deet employment opportunity either because they keep womm out of work, r e p p sent them to the public as inferior worken, or compromise womens pnvate choices in a way that reduces their enjoyment of work and life by disrespecting their dignity. 66. See Gerdom v. Continend Airlines, Inc.. 692 F.2d 602. 605-10 (9th Cir. 1982); Carroll v. Talman Fed. Sav. & L a n Assn. 604 F.2d 1028 (7th Cir. 1979); M e y v. Northwest Airlines, Inc.. 567 F.2d 429. 439 11.24 (D.C. Cir. 1976), rea denied, 434 US. 1086 (1978); EEOC v. Sage Realty Cop., 507 F. S ~ p p 599, . 607-1 1 (S.D.N.Y. 1981). 67. Rogem 527 F. Supp. at 231. 68. &t supm note 66.


mz thc

tht tht
in wc

bn tu1 Pr( me re1 ser gel

T h
ste as: thc tu; grc wa lin rac





(59CI661 P A



pol. 1991:365

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proper place in society, and supposed personal characteristics of blacks and women. The industrys practices have invariably involved discrimination on the basis of womens physical presence and image. The airlines once systematically denied women in public contact positions the right to be short, plump, . . myopic, m a r r i e d , middle-aged or a mother . . . z Men were excluded from these positions for no other reason than maleness. The image that the airlines sought to portray in selecting its female employees was that of a chorus line: every member female; every member young and nubile; and every member in her own right a potential or actual beauty queen. O f necessity, this image control has been sought most often for job categories that regulady bring employees into contact with the public. The basis of the right asserted by the airlines has varied from assertions of a correlation between gender and job performance, to employer prerogative, or to customer preference. Any distinction along these grounds has generally been found to be illusory. The carriers not only engaged in the most blatant discrimination against women, they flaunted it-defending their practices on the ground that few other industries qualled the industrys record in the number of women hired.3 Decades of litigation

were rt volved lowed 1 in the : that arb ness a manda

has n m airline by poi1 tion co with 01 threat but dS( stereot.

72. Pounccy, supm note 71. at C2, col. 1. 73. h one of the most celebrated employment discrimination casea ever to bc litigatd, major air curim sought t o impose a requirement for Yemdcnac on tbe job crte~bry of r t c w u (now ~ renuned fight attendant). Relying OD the expat testimony of psychologists, Drs. E r i c Bvnc and Raymond Katrell, and the expaientirl testimony o f oficids of Pan American, United A i r Lines, and Ersten, Air Lines, Pur A m a h n sought to justify the policy of excluding m m h the job of sight attendant on the ground th8t the ability to prform rrtirf.c&y the nonmecb~cd and ersent i d y nurturing functions of the job was unique to wornat. DLr v. Pur Am. World Airways, Inc., 311 F.Supp. 559 ( S . D . Fk. 1970). wd U 2 F . 2 d 385 (5th Cir.),ea denied 40)U.S.950 (1971). Thus, 8ir urrierr sought not only to esublirh t b t airline prrrcngm preferred fernrile flight attendant~, but .Is0 that a round scientific brsk existed f o rsuch preferences. For I critique of the return of scimti6c bua for dischhati,on, rec I ) .N u K W & L.TANCREDI, DANGEROUSDIAGNOSI~CS: THE S O C W POWER OF B~OLOGICAL INFOMAAflON (1989). In ovenurning the district courts decition upholding the industrys f d d y hiring policy, the T i Circuit concmvrted rn setting fortb tbe legal standud for uuinuining the born fide occupational qurlification exception to Title VII, UI exception that permits UI rmploycr to limit employment in I puticul.rjob category to the memben of one sex. ~ t i o n r origin, l or religious group in certain drcumstanca. (Under the language of Title VII, race cannot k tbe basis of a bonr fide occupational qdifiution exception.) Notwithstuiding Pan Ams attempt to characterize its claim i n terms of a WOmMS unique ability t&,perform the job in question, rhe court could not help noting an irnporunt motivating factor underlying the industrys femaleonly hiring policy: the provirion of M in-fight environment mhmccd by *e obvious cosmetic &st that fmule s t c w u d a ~ a provide . . D i u 442 F.ld at 388. More than a decade after courts struik down the industrys femaleonly policy. Southwest Airh a again attempted to exclude males from the job of flight attendant, this time rcusting the industrys earlier fcmde-only preference in straigFtforwud economic terms b a d on Southwests claim of competitive ~ V U I ~for ~ itself C vis-a-visoth+ airlines, supponed llso by rppuls to customer prefer-


i J



WoI. 1991:365



good, innocent, and pure; the other sinful, evil, carnal, and taboo.82 Air-

lints could profitably titillate white male travelers with one but not the other. Thus, the practice of excluding black women from female-identified jobs involving public contact w a s to be expected as nothing more than a continuation of the portrayal of the patriarchal ideal of Victorian . white womanhood, of woman as a sex object, but not sexy.

Betty C r of these owner dt black wc an occas associatic

D. PubIic Degradation o f Black Women

M a n y employers express shock that black women who refuse to unbraid their hair take such a strong stance, one that could cost them their jobs, i n defense of a hairstyle. More shocking is the recurrence among
unrelated employers of virtually identical solutions to the issue of braids, solutions that embody overt racist caricatures of the past expressed in the subtle, symbolic code of contemporary racism. Invariably, black women are told either to unbraid their hair or to disguise their braids by pulling them into a bun or cover them up with a wig or hairpiece.* T h i s latter solution-the forcible covering up of a black womans hair-connotes a demeaning servitude that persists even in the face of changes in one of Americas most cherished and enduring symbols. For the first h e in the more than one hundred years of the Aunt Jernima trademarks existence, its current owner has deemed it profitable to reveal Aunt Jemimas hair.a* But for the color of her skin, the new Aunt Jemima could pass for
to some extent kuw of the inconclusive MtUm of data on rhe quation of customer p n f m e for sexy stewrrdgta. 82. SCC. cg.. EMX:Dec. No. 70-90, Aug. 19, 1969 (notation on employment application chat black woman was not W u 8 fight attendant b e u w she w u too ugJy a d had big lips); mr a b Omlade, Heartsof h r k n u t in POWERS OF DUxm THEPoLma OF SEXUALITY 350,352 (1983). 83. In Roger* u if to mitigate the dcct of its holding on black women. the court n o d t&t [m]onover. the airline did not require pkintia to restyle her hair. It suggested that she cwld wcu her hair she liked while off duty, and permitted her to pull her hrir into 8 bun and wrap a hairpiece around the bun during working hours. . Plaints hrt done this, but dqa h t the hairpiece hu caused her r v m hudacha. A luw hairpiece would seem in order. Rqem $27 F. Supp. at 233; KC o h Shipp. rvpm note 3. at 14 (Cheryl Tatum told to pull her braids into a bun to comply With Hyatts drras code); Wbscler, Hotd Wwker RghB w Keep CDrnrowx J. W. MnrrSOtt Suprvkors in D . C G d I Hair SvIe T o o Exrmme Wash. Port, JM. 5, 1988. at D 3 (Maniott Hotels Director of Corporrte Rektionr said that black women employeg with braids had &@ to we^ w i g s to work). A similar suggestion was m d e i o C h w e l l v. Pochford Hosp., 27 F ~ i Empl. r Pnc. Cas. (aNA) 698 (N.D. Gr 1981) (1981 W L 224). Thm, however. the suggestion was made for safety n t h a t h . n .esthetic . 84. See CunpbcU, A Eattcrui Woman R k Aunt Jemimas Corpomte Makmver, T h e Village Voice, Nov. 7. 1989, at 45. Actually, the wearing o f headwraps among African md black American women has both functional and cultural signihunce, st leut when done voluntuily. See A. Simkins, The Functional and Symbolic Rola of H a i r and H u d g w among Afrct-hnuiun Women: A Cultural Perspective (1982) (unpublished doctoral dissertation) (available from author). Like the braiding of hair. the weuing of hadwraps has k e n a constant cultural practice among black women wherever they exist in the world. However, the cultural significanceof thii practice had been prv u t e d in the minds of blacks and whites dike by rrce-geadcr stereotyping. Depictions of black

riet of r i likely to women c mans pr exclusion porary IL impetus 1 natural SI mans CUI The psycholo& graphical issue of d hair textu awaken fi others her Cinder E mother.
women with 0 not only with red lips, and C. women, symb 85. SeeY at A22 (dacri overtly disain 86. Black only in menial



ofthe United 5 87. I n R q uses in which not in QKS in* hire. It did so 264 (Jth Cir. IS ish; the holdin& rccomprnying
88. Sw







POI. 1991:365

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between a black woman and her husband,*g created by the wifes lack of light skin and long hair. Through poetry, Brooks celebrates her sisters who have retained their Afros. Alice Walker frees herself from the op pression of oppressed hair, a ceiling on the brain, a last bamer to spiritual liberation.g0 And i n her classic, The Bluesr E , T o n i Morrison describes the insidious ways that young black girls learn to hate themselvesby observing the reaction of adults (including black ones) to light-skinned female children with good hair.9* However, degradation of black women on account of their hair dots not arise solely because some black women wear their hair in its natural o s t state or in styles associated with African culture. Indeed, when m black women adhered to the dominant cultures grooming and hairstyle codes-when many black women sought escape from grinding racist o p pression by ritualistically straightening their hair-black women were disparaged because of their artificially straightened hair. The aesthetic no matter how well-emulated-etablh standards of the white societya boundary between black and white, good and bad, pure and evil, true and false, justifying not only the aesthetic or ideal of racial superiority, but also the social, economic, and political stmctures of domination that result from this ideal. i n k s Afro or naturq hairstyles and so-called artificial ones What l (such as braids), is a question of assimilation. Blacks who challenge the status quo, especially its dominant cultural manifestations, are identified as major threats to central national values. Tbose who do not exercise volition in favor of such values are seen as having the stereotypical characteristics commonly associated with black will and willpower-undis89. See Brooks, T o 7%- Of M y Sistets R7ro Kept n r i t Narumk Newt t o Look a Hot Cbmb in the Teeth. i n CONFIRMATION. AN ANniOLOCY OF AFRICAN AMERICAN WOMEN 84-83 (A. Bmk. & A. Bvrlu eb. 1983). 90. Wnlker, Opptession Puts a Cding on the Brain, in LMNC BY THE WORD71 (1988). 91. &e T. MORRLISON, THE BLWW EYE 53-66 (1970). Describing the ruction o f two ordinuy young black girls t o the tnunts of Mauretn Pal, [a] high-yellow dream child with long brown hair bnidcd into two lynch ropes, Morrison writa: If she was cut-d i f anything could k klievcd. she xu-then we were not. And what did that mean? We w e n lesser. N i c e r ,brighter. but still lesser. Dolls we could destroy. ~ pucnts and aunts, the obedience in the eyes o f but we could not destroy the honey v a u of our pecn, the slippery light in the eyes of our teachers when the encountered the Maureen Peals o f the world. What was the secret? What did we kck? Why w u if important? And s o what? Guilelcsz and without vanity, we were still in love with oulsclva then. We felt comfortable in our skins, enjoyed the news that our senses relewd to UT. h i r e d our din. cultivated our scars, m d could not comprehend this unworthiness. . And dl the time we knew that Maureen Pul w u not the Enemy and not worthy of such intense hatred. The Thing to feu was the Thing that made her beautiful, and not us. Id I t 61-62; sua h A. KENNEDY, FUNNYHOUSE OF THE NEGRO: A P L AY IN ONE A m (1969); M. WASHINGTON, supm note 56; Wolfc, The Haitpiue, in THE COLORED MUSEUM19-23 (1985).

ciplinct their lo In the ide physica choices rnarriag Nc tween n properl: dards b ment 01 elsewhe tages in were pel the issu( standarc and ulti m a t rig Jud the sock tial part ued, bea society L aesthetic and is ir reflected

92. Sei

93. A the pcOple behavior of md in the dominant 01

94. I d muin a vis1 include thos md social t contributiar d m i a iu bc





pol. 1991:365

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The issues in Rogers defy resolution by resort to arguments about mere aesthetic judgments, doctrinal confusion, or minimal effect on employment rights. The application of WiIIingham in Rogers reflects patriarchal assumptions about women generally and competing stereotypical images about womanhood determined by race. These competing images limit black womens choices in ways far more fundamental than is readily apparent in controversies about hair. And although Willingham and Rogers appear to reseme to white women the privilege of their personal and cultural choices, these cases are based on stereotypes that constitute a ready mechanism for denying employment opportunity to white women who refuse to express themselves i n ways that satisfy their employen notions of white femaleness. These decisions effectively lock menblack and white-and black women out of choices associated with true womanhood; read in reverse, they lock white women into such choices.96 Much of the competition between ideologies about black and white womanhood centers on questions of sexuality, beauty, and motherhood. Other comparisons stereotype black women as independent, competent, worldly, and tough, and white women as dependent and infantile. These characteristics are not attributed to black women in any positive sensesuch as evidence of their successful adaptation to multiple oppression of race, gender, and typicdly class, or a s such traits would be viewed when associated with men of any color. Instead, the presence of these traits necessarily places black women outside of any definition of womanhood.
9 6 . See, e&, Hopkins v. Price Waterhouse. 490 U . S .228 (1989); C r a f t v. Mctramcdi., Inc., 766 E2d 1205 (8th Cir. 1985). Both case involve sex discrimin.tion based oil phytiul imyre against women in upper-level employment. Craft wu &cctively demoted(albeit without loss of compcnvtim or knebts) from cc-anchor to rcp&naof a television news program. C r a f t clrimed that the television station applied a s t m d u d of good grooming to male and f d e co-.(Ichors in an uneven way by requhing h a to d o r m to a staeotypiul image of how a woman should appear. She further alleged that she was told th.1 she was k i n g rassignai beuuv the television audience perceived h a as Qo old, too mttmctive, and not deferentid enough to men. Cmfi 766 E2d at 1209. The station r u s i p e d Cmft following a telephone survey ofapproXirmtcly 400 viewm in which the station wked than to rank Craft in ~ompuison with female anchors at other tt.tioru. Four o f the questions dealt with good looks urd the drac of and image of a professional anchor woman. f d 1niti.U~ the COW h d to decide whctba to V a t CdVS scz dkcriminrti~n c h h mder ttUIdards governing grooming coda or th* applicable to otha types of employment discrimination CISCS. Id at 1211 In Hopkin+ Ann Hopltins was denicd a partnuship when smnl p u t n m of her accounting 6nn commmted on h a candidacy by describing her u macho, chiming that she overcornpenntcd for king a woman.. and recommending that she take a c ~ u r s c It chum school. 490 US. at 235. Whm Hopkins c l n d i d y was pl.qd on hold, the partner who dvised h a of thh action recommended that the walk more femininely, talk more femininely, dress more femininely, w u r makeup, b v c h u haif styled and wear jewelry. Id

Black WOi tively ma: not only i femalenes haviord women.9* Stere images at relation t t tion to th further 4 concernin and authc the absen to the dt quences c between 1 Sten tions. T k all womc based on and socia lar. M o s mans in interactib ment of b without f and ultin race and

Elk. core func


97. See
67 (1985) (s

disccriminati. some extent 98. fh for black mi Black High Nov. 6, 199

Times Aug
99. Set



pol. 1991:365

quately performed as long as courts and legal theorists create narrow, inflexible definitions of harm and categories of protection that fail to reflect the actual experience of discrimination. Considering the interactive relationship between racism and sexism from the experiential standpoint and knowledge base of black women can lead to the development of legal l l women of the theories grounded in reality, and to the consideration by a extent to which racism limits their choices as women and by black and other men of color of the extent to which sexism defines their experiences as men of subordinated races. Creating a society that can be judged favorably by the way it treats the women of its darkest race need not be the work of black women alone, nor will black women be the exclusive or primary beneficiaries of such a society. Such work can be engaged in by a l l who are willing to take seriously the everyday acts engaged in by black women and others to resist racism and sexism and to use these acts as the basis to develop legal theories designed to end race and gender subordination. Resistance can take the form of momentous acts of organized, m a l l ,everyday planned, and disciplined protests, or it may consist of s actions of seeming insignificance that can nevertheless validate the actors sense of dignity and worth-such as refusing on the basis of inferiority to give up a seat on a bus or covering ones self in shame. It can arise out of the smallest conviction, such as knowing that an old woman can transmit an entire culture simply by touching a child. Sometimes it can come from nothing more than a refusal to leave a grandmother behind.