By Monique Nettleford-Bruce

For many black women in the United States, going “natural” has become the champion of self-growth and self-acceptance.[1] The pride that so many women carry regarding their hair permeates through their interactions with others and may be the subject of their YouTube posts and Facebook updates.[2] Amidst all of the ways that black women have come to love their natural curls, coils, and kinks, there still lies an aura of exoticization in and outside of the Black community regarding what it means to have hair that is “natural.”[3] Inside the Black community, one must question what it means to get in touch with your roots, appreciating the “blackness” of your natural hair, stereotyping texture, and maintaining a hierarchy of “good hair” versus “bad hair.”[4] Many Black women have had to experience the idea of not seeing their hair as “good enough” and have turned to alternative measures that gave an enlightening backdrop to “going natural.”[5] Although they battled the notion of inadequacy from historical concepts of Whiteness as the ultimate attainment, they also had to battle knowing that many non-Black people would feel entitled to explore and touch their hair.[6]

In 2013, a New York City protest revealed many Black women holding signs that essentially said, “Yes, you can touch my hair”[7] or “No, you may not touch my hair.”[8] The message behind these signs is twofold: (1) the acknowledgement that their hair is considered different enough to be “foreign” and (2) that they have come to a point where they must express a choice of consent before one can touch their hair – something that should already be established.[9] A history of non-Black individuals touching Black hair without consent is a troubling one. It is often wrought with perceptions of exoticized Blackness and a self-appointed freedom to touch it. A friendly conversation between a Black woman and a non-Black person may suddenly turn into unwanted touching accompanied with statements like “it feels so cool” or “it’s so cute!”[10]This interaction can leave the touched person feeling like her hair is actually unnatural and different from the “norm.”

The legal realm has yet to decide whether this phenomenon is considered illegal in its simplest form. It is an idea that may look uncomplicated on the outside, but is wrought with troubling concerns. And so, this blog post argues that the nonconsensual touching of Black hair can amount to intentional infliction of emotional distress, in hopes to illuminate the public about a rudimentary occurrence that may have legal consequences.[11]

There are arguably few cases that have much to say about whether the unwanted touching of natural hair is considered an infliction of emotional distress.[12] There are namely a couple of cases that demonstrate that the courts are not as friendly toward traditionally Black hairstyles. In Rogers v. American Airlines, the South District Court of New York decided that an airline had a bona fide business purpose in denying a Black woman from wearing a braided hairstyle because it was not “conservative and business-like.”[13] The treatment of this ruling, and many others like it,[14] echoes a disdain for styles that deviate from a White-centered aesthetic of beauty. Furthermore, this viewpoint also serves to highlight how “foreign” Black hair is in the legal realm, a close reflection of society and a precursor to unwanted touching.

While the courts frown upon black hairstyles in the corporate world, it is apparent that there is an existing bias against customs outside of the white aesthetic. What is left out of the equation is how this bias from both inside and outside the courtroom affects these individuals emotionally. Can unwanted touching of Black women’s hair amount to intentional infliction of emotional distress?

According to 1939 landmark case regarding infliction of emotional distress, Clark v. Associated Retail Credit Men, there is no duty of care to avoid causing mental distress upon a person.[15] However, if such an action disturbs another’s “mental and emotional tranquility” even if no physical harm is shown to have occurred, then one can be found liable.[16] Ideally, because much unwanted touching stems from curiosity, rather than intent to harm, we see that black letter law lays out a way to discover whether such an infliction was calculated to cause distress.[17]The Restatement (Second) of Torts explains that exceptions to liability for unwanted touching include “insults, indignities, threats, annoyances, petty oppressions, or other trivialities,” as not to include every occurrence that may offend.[18] The corpus of these exceptions reaches into the heart of what may be considered adequate, subjective distress. Against the backdrop of centuries of exoticization, Black women (and men) may have a chance to assert a claim for intentional infliction of emotional distress by arguing that unwanted touching is “beyond all possible bounds of decency and (is) regarded as atrocious and utterly intolerable in a civilized community.”[19]

But what about intention? Where is the line drawn? Intent to touch is different from intent to touch to cause emotional distress upon the natural haired bystander. This objective distinction matters, as case law demonstrates that inferred intent must be gathered from the outrageousness of defendant’s conduct, much so that a reasonable person would not have foreseen it occur.[20] Another element to be proven is the actor’s privilege of “just cause or excuse” to count as harmful intent. [21] The Clark court used a balancing test to discover whether the plaintiff’s allegations are minimally sufficient to show intent.[22]

Let us walk through this argument with a hypothetical. A Black woman, Alesha, wears her hair in an Afro style. If Alesha were to sue a stranger for touching her hair without consent, thereby causing intentional infliction of emotional distress, victory may be difficult to achieve for Alesha – but not impossible.[23] Alesha would try to assert that by the unwanted touching, a message of exclusion, was inferred and it disturbed her mental and emotional tranquility.[24] In showing subjective distress, Alesha may take the plight of explaining what it is like to be “Otherized” and exoticized because of how she wears her hair.[25] She only need show that she suffered having to reason through this reality and being touched without consent.[26] Unfortunately, Alesha would also have to explain that the conduct was calculated and was not just an annoyance, petty oppression, or other triviality.[27]Understanding that intentional infliction of emotional distress need not necessarily be accompanied by physical injury, a jury may be able to determine whether the conduct was extremely outrageous or a simple mistake.[28] A balancing test may be used to shut down these exceptions but a court is likely to reflect the mainstream ideologies of White normativity.[29]

John M. Kang, author of “Deconstructing the Ideology of White Aesthetics,” provides helpful insight into why Alesha’s case has a dim chance of success in court.[30] Kang explains that the ideology of White aesthetics maintains an implicit set of ideas that people of color deserve to remain subordinated within the social hierarchy due to their aesthetic inferiority.[31] This ideology is often subconscious and does not necessarily have a skin color but has been historically employed by White Europeans and White Americans.[32] What Kang calls the four main qualities of the ideology of White aesthetics, for Alesha’s case, it represents four wider-scaled obstacles to receiving redress for intentional infliction of emotional distress.[33] First, the Western traditional notions of beauty were attached to philosophy and political theory as norms.[34] Second, negative self-identification of the subordinate group operates to enforce positive self-identification of the dominant group, enabling the dominant group to commit illegal acts against the subordinate group, and lacking subsequent remorse.[35]Third, “the ideology speaks in an unmediated, aperspective voice that casts its subjective preferences as objectively legitimate.”[36] This further explains how the legal system can be biased toward what has traditionally known to be “good and objectively true” standards of beauty.[37] The personal becomes political for the subordinate group.[38] Fourth, the cultural aspects of aesthetic expressions from people of color are removed or diminished through institutional means.[39] All factors combined, mainstream views of Black hair continue to unapologetically re-appear every time a stranger touches Alesha’s hair without consent.

As it turns out, it is a long shot to make a case Alesha who endures the emotional toll of being “Otherized.”[40] Each incident serves to remind the plaintiff that he or she is different and is therefore made to participate in a physical showing of a stranger’s curiosity that is less than decent – it is intolerable.[41] Underneath the legal realm, there still exists an ignorance that is reminiscent of negative value judgments against various displays of Blackness. Nevertheless, the unconsented touching continues as the law looks on.

 [1] See Layla A. Jones, Holistic hair care more than a fading trend, Philly.com: Style (June 6, 2014, 3:00 AM), https://www.philly.com/philly/blogs/style/Holistic-hair-care-more-than-a-fading-trend.html.

[2] See Layla A. Jones, Natural hair, natural living and YouTube, Philly.com: Style (June 6, 2014, 3:00 AM), https://www.philly.com/philly/blogs/style/Natural-hair-natural-living-and-YouTube.html.

[3] See generally Ingrid Banks, Hair Matters: Beauty, Power, and Black Women’s Consciousness (2000) (analyzing various narratives from Black women and discussing their ideas about race, gender, sexuality, beauty, and power).

[4] See Brina Hargro, Hair Matters: African American Women and the Natural Hair Aesthetic 1, 4 (Aug. 11, 2011) (published Thesis, Georgia State University Ernest G. Welch School of Art and Design), available at https://scholarworks.gsu.edu/art_design_theses/95.

[5] Id. at 12.

[6] See Michel Martin, et. al, Keep Your Hands Off The Hair, on Can I Just Tell You? (NPR Mar. 22, 2010), available at https://www.npr.org/templates/story/story.php?storyId=125020162 (discussing the race issues behind the problematic touching of African-American hair by other people without consent).

[7] See Julee Wilson, You Can Touch My Hair” Explores Fascination With Black Hair, Sparks Debate, The Huffington Post (June 8, 2013, 1:39 AM), https://www.huffingtonpost.com/2013/06/07/you-can-touch-my-hair-exhibit-black-women-hair_n_3401692.html.

[8] Id.; see also Would You Let a Stranger Touch YOUR Hair, Sporty Afros,https://sportyafros.com/hair/can-i-touch-your-hair/

[9] See Amara Hand, Let’s Talk About the ‘Taboo’ of Touching Other People’s Hair, Thought Catalog (Jan. 13, 2015), https://thoughtcatalog.com/amara-hand/2015/01/lets-talk-about-the-taboo-of-touching-other-peoples-hair/.

[10] See Wilson, supra note 7 (recounting an instance where a white woman grabbed a Black woman’s hair without her permission and commented “Oh that’s so cute!”).

[11] See Clark v. Associated Retail Credit Men, 105 F.2d 62 (D.C. Cir. 1939)

[12] See Rogers v. Loews L’Enfant Plaza Hotel, 526 F. Supp. 523, 529 (D.C. 1981).

[13] See Rogers v. American Airlines, 527 F. Supp. 229 (S.D.N.Y. 1981) (finding that American Airlines was justified in refusing to let their employee wear her wear in a corn-row style); see generally John M. Kang,Deconstructing the Ideology of White Aesthetics, 2 Mich. J. Race & L. 283, 312-13 (1997) (examining the choices given to white people in expressing themselves, which has more flexibility than people of color because the latter must conform or reject the dominant group’s aesthetic values).

[14] See generally E.E.O.C. v. Catastrophe Management, 11 F. Supp. 3d 1139 (S.D. Ala 2014) (holding that an employer’s policy prohibiting employees from wearing their hair in dreadlocks was not discriminatory against African–Americans under Title VII because it was not an immutable characteristic); see also Eatman v. United Parcel Service, 194 F. Supp. 2d 256 (S.D.N.Y. 2002) (finding that an employer’s appearance policy requiring employees with “unconventional” hairstyles, including dreadlocks, to wear hats, was not facially discriminatory against African-Americans).

[15] See supra note 11.

[16] Id. at 65.

[17] See Shewmaker v. Minchew, 504 F. Supp. 156, 163 (D.C. 1980) (“ . . . [t]he tortfeasor’s conduct must be wanton, outrageous in the extreme, or especially calculated to cause serious mental distress.”) (emphasis added).

[18] See Waldon v. Covington, 415 A.2d 1070, 1076 (D.C. 1980).

[19] See Restatement (Second) of Torts s 46, 55-56 (1965); see Waldonsupra note 18.

[20] See Wood v. United Air Lines, Inc., 404 F.2d 162, 165 (10th Cir. 1968).

[21] See supra note 11 at 66-67.

[22] Harper and James at 876

[23] This also includes Black men, black individuals in general.

[24] See supra note 11 at 65.

[25] See Vincene Verdun, Subtle Racism in Everyday Talk: Imus, Joe Biden and The Delonas New York Post Cartoon: Are they Racist?, 21 Nat’l Black L.J. 1, 9 (2009) (referring to the insight of Lloyd Yabura, activist sociologist, to undercover terminology that defines Otherized people, African-Americans, as subject to Eurocentric concepts of who they are as a people).

[26] See Martin, supra note 6.

[27] See Restatement (Second) of Torts, s 46, comment d. 21 (1965).

[28] See Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C. 1982);Anderson v. Prease, 445 A.2d 612, 613 (D.C. 1982); Waldon v. Covington, 415 A.2d 1070, 1076 (D.C. 1980).

[29] See supra note 11 at 65.

[30] See John M. Kang, Deconstructing the Ideology of White Aesthetics, 2 Mich. J. Race & L. 283, 312-13 (1997).

[31] Id. at 287.

[32] Id. at 287, 292-93.

[33] Id. at 288.

[34] Id.

[35] Id. at 288-91.

[36] Id. at 292-95.

[37] Id. at 293.

[38] Id. at 295.

[39] Id. at 295-98.

[40] See supra note 25.

[41] See Restatement (Second) of Torts, supra note 27.