author: JORDAN, Circuit Judge:

text:
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. CATASTROPHE MANAGEMENT SOLUTIONS, Defendant-Appellee.
    No. 14-13482
    United States Court of Appeals, Eleventh Circuit.
    (September 15, 2016)

      Paula Rene’ Bruner, Equal Employment Opportunity Commission, Washington, DC, Julie Bean, Marsha Lynn Rucker, C. Emanuel Smith, EEOC, Birmingham, AL, for Plaintiff-Appellant.
    David James Middlebrooks, Whitney Ryan Brown, Lehr Middlebrooks & Vree-land, PC, Birmingham, AL, Thomas M. Johnson, Jr., Eugene Scalia, Helgi C. Walker, Gibson Dunn & Crutcher, LLP, Washington, DC, for Defendant-Appellee.
    Joshua P. Thompson, Pacific Legal Foundation, Sacramento, CA, for Pacific Legal Foundation, Amicus Curiae.
    Before JORDAN and JULIE CARNES, Circuit Judges, and ROBREÑO, District Judge.

       The Honorable Eduardo Robreño, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.

   JORDAN, Circuit Judge:

The Equal Employment Opportunity Commission filed suit on behalf of Chastity Jones, a black job applicant whose offer of employment was rescinded by Catastrophe Management Solutions pursuant to its race-neutral grooming policy when she refused to cut off her dreadlocks. The EEOC alleged that CMS’ conduct constituted discrimination on the basis of Ms. Jones’ race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)(l) & 2000e-2(m). The district court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6) because it did not plausibly allege intentional racial discrimination by CMS against Ms. Jones. See E.E.O.C. v. Catastrophe Mgmt. Solutions, 11 F.Supp.3d 1139, 1142-44 (S.D. Ala. 2014). The district court also denied the EEOC’s motion for leave to amend, con-eluding that the proposed amended complaint would be futile. The EEOC appealed.

With the benefit of oral argument, we affirm. First, the EEOC — in its proposed amended complaint and in its briefs — conflates the distinct Title VII theories of disparate treatment (the sole theory on which it is proceeding) and disparate impact (the theory it has expressly disclaimed). Second, our precedent holds that Title VII prohibits discrimination based on immutable traits, and the proposed amended complaint does not assert that dreadlocks — though culturally associated with race — are an immutable characteristic of black persons. Third, we are not persuaded by the guidance in the EEOC’s Compliance Manual because it conflicts with the position taken by the EEOC in an earlier administrative appeal, and because the EEOC has not offered any explanation for its change in course. Fourth, no court has accepted the EEOC’s view of Title VII in a scenario like this one, and the allegations in the proposed amended complaint do not set out a plausible claim that CMS intentionally discriminated against Ms. Jones on the basis of her race.

I

The EEOC relies on the allegations in its proposed amended complaint, see Br. of EEOC at 2-6, so we set out those allegations below.

A

CMS, a claims processing company located in Mobile, Alabama, provides customer service support to insurance companies. In 2010, CMS announced that it was seeking candidates with basic computer knowledge and professional phone skills to work as customer service representatives. CMS’ customer representatives do not have contact with the public, as they handle telephone calls in a large call room.

Ms. Jones, who is black, completed an online employment application for the customer service position in May of 2010, and was selected for an in-person interview. She arrived at CMS for her interview several days later dressed in a blue business suit and wearing her hair in short dreadlocks.

After waiting with a number of other applicants, Ms. Jones interviewed with a company representative to discuss the requirements of the position. A short time later, Ms. Jones and other selected applicants were brought into a room as a group.

CMS’ human resources manager, Jeannie Wilson — who is white — informed the applicants in the room, including Ms. Jones, that they had been hired. Ms. Wilson also told the successful applicants that they would have to complete scheduled lab tests and other ’paperwork before beginning their employment, and she offered to meet privately with anyone who had a conflict with CMS’ schedule. As of this time no one had commented on Ms. Jones’ hair.

Following the meeting, Ms. Jones met with Ms. Wilson privately to discuss a scheduling conflict she had and to request to change her lab test date. Ms. Wilson told Ms. Jones that she could return at a different time for the lab test.

Before Ms. Jones got up to leave, Ms. Wilson asked her whether she had her hair in dreadlocks. Ms. Jones said yes, and Ms. Wilson replied that CMS could not hire her “with the dreadlocks.” When Ms. Jones asked what the problem was, Ms. Wilson said “they tend to get messy, although I’m not saying yours are, but you know what I’m talking about.” Ms. Wilson told Ms. Jones about a male applicant who was asked to cut off his dreadlocks in order to obtain a job with CMS.

When Ms. Jones said that she would not cut her hair, Ms. Wilson told her that CMS could not hire her, and asked her to return the paperwork she had been given. Ms. Jones did as requested and left.

At the time, CMS had a race-neutral grooming policy which read as follows: “All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines.... [Hjairstyle should reflect'a business/professional image. No excessive hairstyles or unusual colors are aceeptable[.]”

B

Dreadlocks, according to the proposed amended complaint, are “a manner of wearing hair that is common for black people and suitable for black hair texture. Dreadlocks are formed in a black person’s hair naturally, without any manipulation, or by manual manipulation of hair into larger coils.”

The EEOC alleged that the term dread-lock originated during the slave trade in the early history of the United States. “During the forced transportation of Africans across the ocean, their hair became matted with blood, feces, urine, sweat, tears, and dirt. Upon observing them, some slave traders referred to the slaves’ hair as ‘dreadful,’ ” and dreadlock became a “commonly used word to refer to the locks that had formed during the slaves’ long trips across the ocean.”

C

The proposed amended complaint also contained some legal conclusions about the concept of race. First, the EEOC stated that race “is a social construct and has no biological definition.” Second, the EEOC asserted that “the concept of race is not limited to or defined by immutable physical characteristics.” Third, according to the EEOC Compliance Manual, the “concept of race encompasses cultural characteristics related to race or ethnicity,” including “grooming practices.” Fourth, although some non-black persons “have a hair texture that would • allow the hair to lock, dreadlocks are nonetheless a racial characteristic, just as skin- color is a racial characteristic,”

Playing off these legal conclusions, the proposed amended complaint set out allegations about black persons and their hair. The hair of black persons grows “in very tight coarse coils,” which is different than the hair of white persons. “Historically, the texture of hair has been used as a substantial determiner of race,” and “dreadlocks are a method of hair styling suitable for the texture of black hair and [are] culturally associated” with black persons. When black persons “choose to wear and display their hair in its natural texture in the workplace, rather than straightening it or hiding it, they are often stereotyped as not being ‘teamplayers,’ ‘radicals,’ ‘troublemakers,’ or not sufficiently assimilated into the corporate and professional world of employment,” Significantly, the proposed amended complaint did not allege that dreadlocks are an immutable characteristic of black persons.

II

Our review in this appeal is plenary. Like the district court, we accept as true the well-pleaded factual allegations in the proposed amended complaint and draw all reasonable inferences in the EEOC’s favor. See, e.g., Ellis v. Cartoon Network, Inc., 803 F.3d 1251, 1255 (11th Cir. 2015) (dismissal of a complaint for failure to state a claim); St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198 F.3d 815, 822 (11th Cir. 1999) (denial of a motion for leave to amend due to futility). The legal conclusions in the proposed amended complaint, however, are not presumed to be true. See Ashcroft v. Iqbal, 556 U.S. 662, 679-81, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Franklin v. Curry, 738 F.3d 1246, 1248 n.1 (11th Cir. 2013).

A complaint must contain sufficient factual allegations to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In a Title VII case like this one, the EEOC had to set out enough “factual content t[o] allow[ ] [a] court, to draw the reasonable inference” that CMS is liable for the intentional racial discrimination alleged. See Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937 (explaining that the “plausibility standard” requires more than a “mere possibility” but is “not akin tó a ‘probability requirement’ ”).

Ill

The EEOC claimed in its proposed amended complaint that a “prohibition of dreadlocks in the workplace constitutes race discrimination because dreadlocks are a manner of wearing the hair that .is physiologically and culturally associated with people of African descent.” So, according to the EEOC, the decision of CMS to “interpret its race-neutral written grooming policy to ban the wearing of dreadlocks constitutes an. employment practice that discriminates on the basis of race.”

The district court dismissed the initial complaint, and concluded that the proposed amended complaint was futile, because “Title VII prohibits discrimination on the basis of immutable characteristics, such as race, color, or natural origin,” and “[a] hairstyle, even one more closely associated with a particular ethnic group, is a mutable characteristic.” Catastrophe Mgmt., 11 F.Supp.3d at 1143 (order granting motion to dismiss). The district court was not swayed by the EEOC’s contention that the allegations were sufficient because “hairstyle can be a determinant of racial identity,” explaining that other courts had rejected that argument. See id. The district court also declined the EEOC’s invitation to discard the immutable/mutablé distinction for Title VII race discrimination claims. See id. See also D.E. 27 at 1-2 (order denying leave to amend because the EEOC had already presented its more detailed allegations as legal arguments in support of the initial complaint, and those arguments had been rejected). ■

The EEOC advances a number of arguments on appeal in support of its position that denying a black person employment on the basis of her dreadlocks through the application of a race-neutral grooming policy constitutes intentional discrimination on tile basis of race in.violation of Title VII. The arguments, which build on each other, are that dreadlocks are a natural outgrowth of the immutable trait of black hair texture; that the dreadlocks hairstyle is directly associated with the immutable trait of race; that dreadlocks can be a symbolic expression of racial pride; and that targeting dreadlocks as a basis for employment can be a form of racial stereotyping. See Br. of EEOC at 14-39.

A

Before we address these arguments, we discuss an overarching problem concerning the EEOC’s liability theory. Despite some loose language in its proposed amended complaint, the EEOC confirmed at oral argument that it is proceeding only on .a disparate treatment theory under 42 U.S.C. § 2000e-2(a)(l) (making it “unlawful [for a covered employer] to fail or refuse to hire or to discharge any individual ,.. because of such individual’s race, color, religion, sex or national origin”), and is not pursuing a disparate impact theory under 42 U.S.C. § 2000e-2(k)(l) (permitting disparate impact claims for unlawful employment practices and setting out applicable burdens of proof).

This matters because the two theories are not interchangeable, and “courts must be careful to distinguish between the[m.]” Raytheon Co. v. Hernandez, 540 U.S. 44, 53, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003). See also E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1283 (11th Cir. 2000) (concluding that allowing plaintiffs who alleged disparate treatment to assert a disparate impact claim “would unwisely conflate the distinct theories of disparate impact and disparate treatment”). To prevail on a disparate treatment claim, a Title VII plaintiff must demonstrate that an employer intentionally discriminated against her on the basis of a protected characteristic. See Ricci v. DeStefano, 557 U.S. 557, 577, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). In contrast, a disparate impact claim does not require proof of discriminatory intent. A disparate impact claim targets an employment practice that has an actual, though not necessarily deliberate, adverse impact on protected groups. See id. Given the EEOC’s disparate treatment claim, the proposed amended complaint had to contain sufficient factual allegations to set out a plausible claim that CMS intentionally discriminated against Ms. Jones, individually,, because of her race.

Despite its decision to assert only a disparate treatment claim, the EEOC at times conflates the two liability theories, making disparate impact arguments in support of its disparate treatment claim. See Br. of Chamber of Commerce of the United States as Amicus Curiae at 14-19 (pointing this out). The EEOC, for example, faults the district court for not allowing expert testimony on the “racial impact of a dreadlock ban” and for failing to acknowledge “the critical disadvantage at which the dreadlock ban places Black applicants.” Br. of EEOC at 7-8, 18 (emphasis added). It also asserts that “the people most adversely and significantly affected by a dreadlocks ban, such as CMS’, are African-Americans.” Id. at 31 (emphasis added). And it argues that “a policy which critically disadvantages or affects members of one group over another” can support an intentional discrimination claim. See Reply Br. of EEOC at 16 (emphasis added). Because this is a disparate treatment case, and only a disparate treatment case, we do not address further the EEOC’s arguments that CMS’ race-neutral grooming policy had (or potentially had) a disproportionate effect on other black job applicants.

B

In its notice of supplemental authority the EEOC relies on the Supreme Court’s recent decision in Young v. United Parcel Serv., Inc., — U.S. —, 135 S.Ct. 1338, 191 L.Ed.2d 279 (2015), a case involving 42 U.S.C. § 2000e(k) — a provision of the Pregnancy Discrimination Act — to support its use of disparate impact arguments in this action. Young, however, does not work a dramatic shift in disparate treatment jurisprudence.

In Young, the Supreme Court dealt with the accommodation requirements of the PDA. Specifically, it considered how to implement the statutory mandate that employers treat pregnancy-related disabilities like nonpregnancy-related disabilities in a situation where an employer does not treat all nonpregnancy-related disabilities alike. Young held that a pregnant employee who seeks to show disparate treatment in such a scenario may do so through the application of the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Young, 135 S.Ct. at 1353-54. If an employer offers apparently legitimate reasons for failing to accommodate pregnant employees, the plaintiff may assert that the proffered reasons are pretextual by providing “sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but rather— when considered along with the burden imposed — give rise to an inference of intentional discrimination.” Id. at 1354. For example, a plaintiff may provide evidence that an employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. See id. at 1354-55.

The rationale and holding in Young are based on, and therefore limited to, the language in a specific provision of the PDA. Young is not, as the EEOC suggests, automatically transferable to a disparate treatment case under Title VII involving allegations of intentional racial discrimination.

Despite the textual differences between the Title VII disparate treatment provision at issue here (§ 2000e — 2(a)(1)) and the PDA provision at issue in Young (§2000e(k)), the EEOC argues that the following language from Young supports its use of disparate impact concepts in a disparate treatment case:

[Djisparate-treatment law normally permits an employer to implement policies that are not- intended to harm members of a protected class, even if their implementation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, nonpre-textual reason for doing so.

135 S.Ct. at 1350 (internal citations omitted). The quoted passage, however, merely explains that disparate treatment liability attaches only when an employer intentionally harms members of a protected group. It summarizes the familiar framework courts use to assess disparate treatment claims at summary judgment, where direct proof of intentional discrimination is unavailable: the McDonnell Douglas burden-shifting framework, which' places the burden on the employer to articulate a legitimate reason for taking an adverse employment action once an employee establishes a prima facie case.

We do not read the passage from Young in the inverse to stand for the proposition that an employer’s neutral policy can engender disparate treatment liability merely because it has an unintended adverse effect on members of a protected group. The crux of the disparate treatment inquiry, and the question the McDonnell Douglas framework seeks to answer, is whether the employer intentionally discriminated against particular persons on an impermissible basis, not whether there was a disparate impact on a protected group as a whole. An allegation of adverse consequences, without more, is not sufficient to state a claim for disparate treatment. Cf. id. at 1355 (“the continued focus on whether the plaintiff has introduced sufficient evidence to give rise to an inference of intentional discrimination avoids confusing the disparate-treatment and disparate-impact doctrines”).

IV

The question in a disparate treatment case is “whether the protected trait actually motivated the employer’s decision.” Raytheon, 540 U.S. at 52, 124 S.Ct. 513 (ellipses and internal quotation marks omitted). Generally speaking, “[a] plaintiff can prove disparate treatment ... by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or ... by [circumstantial evidence] using the burden-shifting framework set forth in McDonnell Douglas.” Young, 135 S.Ct. at 1345. See also Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 n.3 (11th Cir. 2005) (explaining that McDonnell Douglas “is not the exclusive means” for showing intentional. discrimination through circumstantial evidence).

Title VII does not define the term “race.” And, in the more than 50 years since Title VII was enacted, the EEOC has not seen fit to issue a regulation defining the term. See EEOC Compliance Manual, § 15-11, at 4 (2006) (“Title VII does not contain a definition of ‘race,’ nor has the Commission adopted one.”). This appeal requires us to consider, at least in part, what “race” encompasses under Title VII because the EEOC maintains that “if [] individual expression is tied to a protected trait, such as race, discrimination based on such expression is a violation of the law.” Br. of EEOC at 20.

A

“The meaning of the word ‘race’ in Title VII is, like any other question of statutory interpretation, a question of law for the. court.” Village of Freeport v. Barrella, 814 F.3d 594, 607 (2d Cir. 2016). When words are not defined in a statute, they are “interpreted as taking their ordinary, contemporary, common meaning,” Sandifer v. U.S. Steel Corp., — U.S. —, 134 S.Ct. 870, 876, 187 L.Ed.2d 729 (2014) (citation and internal quotation marks omitted), and one of the ways to figure out that meaning is by looking at dictionaries in existence around the time of enactment. See, e.g., St. Francis College v. Al-Khazraji, 481 U.S. 604, 609-12, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987) (consulting 19th century dictionaries to determine the meaning of “race” in a case arising under 42 U.S.C, § 1981, which became law in 1866).

In the 1960s, as today, “race” was a complex concept that defied a single definition. Take, for example, the following discussion in a leading 1961 .dictionary: “In technical discriminations, all more or less controversial and often lending themselves to great popular misunderstanding or misuse, Race is anthropological and ethnological in force, usu[ally] implying a physical type with- certain underlying characteristics, as a particular color of skin or shape of skull ... although sometimes, and most controversially, other presumed factors are chosen, such as place of origin ... or common root language.” WebsteR’s ThiRD New International Dictionary of the English Language 1870 (unabridged 1961).

Nevertheless, most dictionaries at that time tied “race” to common physical characteristics or traitá existing through ancestry, descent, or heredity. See id. (defining “race” as “the descendants of a common ancestor: a family, tribe, people, or nation belonging to the samé stock” or “a class or kind of individuals with common characteristics, interests, appearance, or habits as if derived from a common ancestor,” dr “a division of mankind possessing traits that are transmissible by descent and sufficient to characterize it as a distinct human type (Caucasian =) (Mongoloid =)”); A Dictionary of the Social Sciences 569 (Julius Gould & William Kolb eds. 1964) (“A race is a subdivision of a species, individual members of which display with some frequency a number of hereditary attributes that have become associated with one another in some measure through considerable degree of in-breeding among the ancestors of the group during a substantial part of their recent evolution.”); A Dictionary of Sociology 142 (G. Duncan Mitchell ed. 1968) (“Biologically speaking the concept of race refers to a population sharing a gene-pool giving rise to a characteristic distribution of physical characteristics.determined by heredity. There are no clear cut boundaries between racial groups thus defined and considerable variations may be exhibited within races.”). One specialty dictionary, while defining “race” as an “anthropological term denoting a large group of persons distinguished by significant hereditary physical traits,” cautioned that “[a] common misconception is that cultural traits sufficiently' differentiate races.” Dictionary of Political Science 440 (Joseph Dunne ed. 1964).

From the sources we have been able to review, it appears more likely than not that “race,” as a matter of language and usage, referred to common physical characteristics shared by a group of people and transmitted by their ancestors over time. Although the period dictionaries did not use the word “immutable” to describe such common characteristics, it is not much of a linguistic stretch to think that such characteristics are a matter of birth, and not culture.

There is little support for the position of the EEOC that the 1964 Congress meant for Title VII to protect “individual expression ... tied to a protected race.” Br. of EEOC at 20. Indeed, from a legal standpoint, it appears that “race” was then mostly understood in terms of inherited physical characteristics. See Blace’s Law DICTIONARY 1423 (4th ed. 1961) (“Race. An ethnical stock; a great division of mankind having in common certain ■ distinguishing physical peculiarities constituting a comprehensive class appearing to be derived from a distinct primitive source. A tribal or national stock, a division or subdivision of one of the great racial stocks of mankind distinguished by minor peculiarities. Descent.”) (citing cases).

It may be that today “race” is recognized as a “social construct,” Ho by Ho v. San Francisco Unified Sch. Dist., 147 F.3d 854, 863 (9th Cir. 1998), rather than an absolute, biological truth. See also Al-Khazraji, 481 U.S. at 610 n.4, 107 S.Ct. 2022 (noting that some, but not all, scientists have concluded that “racial classifications are for the most part sociopolitical, rather than biological, in nature”); The American Heritage Dictionary of the English Language 1441 (4th ed. 2009) (usage note for “race”: “The notion of race is nearly as problematic from a scientific point of view as it is from a social one.”). But our possible current reality does not tell us what the country’s collective Zeitgeist was when Congress enacted Title VII half a century ago. “That race is essentially only a very powerful idea and not at all a biological fact is, again, an emerging contemporary understanding of the meaning of race.” Rhonda V. Magee Andrews, The Third Reconstruction: An Alternative to Race Consciousness and Colorblindness in Post-Slavery America, 54 Ala. L. Rev. 483, 515 (2003).-

B

If we assume, however, that the quest for the ordinary understanding of “race” in the 1960s does not have a clear winner, then we must look for answers elsewhere. Some cases from the former Fifth Circuit provide us with binding guidance, giving some credence to Felix Frankfurter’s adage that “[n]o judge writes on a wholly clean slate.” Walter Hamilton, Preview of a Justice,’48 Yale L.J. 819, 821 (1939) (quoting Felix Frankfurter, The CommerCE Clause under Marshall, Taney, and Waite 12 (1937)). As we explain below, those cases teach that Title VII protects against discrimination based on immutable characteristics.

In Willingham v. Macon Tel. Publ’g Co., 507 F.2d 1084 (5th Cir. 1975) (en banc), we addressed a Title VII sex discrimination claim by a male job applicant who was denied a position because his hair was too long. Although the employer interpreted its neutral dress/grooming policy to prohibit the wearing of long hair only by men, and although the plaintiff argued that he was the victim of sexual stereotyping (i.e., the view that only women should have long hair), we affirmed the grant of summary judgment in favor of the.employer. See id. at 1092-93.

We held in Willingham that “[ejqual employment opportunity,” which was the purpose of Title VII, “may be secured only when employers are barred from discriminating against employees on the basis of immutable characteristics, such as race and national origin. Similarly, an employer cannot have one hiring policy for men and another for women if the distinction is based on some fundamental right. But a hiring policy that distinguishes on some other ground, such as grooming or length of hair, is related more closely to the employer’s choice of how to run his business than equality of employment opportunity.” Id. at 1091. We “adopt[ed] the view ... that distinctions in employment practices between men and women on the basis of something other than immutable or protected characteristics do not inhibit employment opportunity in violation of [Title VII].” Id. at 1092. And we approved the district court’s alternative ground for affirming the grant of summary judgment in favor of the employer — that because grooming and hair standards were also imposed on female employees, men and women were treated equally. See id. In closing, we reiterated that “[pjrivate employers are prohibited from using different hiring policies for men and women only when the distinctions used relate to immutable characteristics or legally protected rights.” Id.

Willingham involved hair length in the context of a sex discrimination claim, but in Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980), we applied the immutable characteristic limitation to national origin, another of Title VII’s protected categories. In Gar-da a bilingual Mexican-American employee who worked as a salesperson was fired for speaking Spanish to a co-worker on the job in violation of his employer’s English-only policy, and he alleged that his termination was based on his national origin in violation of Title VII (which we referred to as the “EEO Act”). We affirmed the district court’s judgment in favor of the employer following a bench trial. We noted that an expert witness called by the employee had “testified that the Spanish language is the most important aspect of ethnic identification for Mexican-Americans, and it is to them what skin color is to others,” and that testimony formed part of the basis for the claim .that the employer’s policy was unlawful. See id. at 267. Although the district court had found that there were other reasons for the employee’s dismissal, we assumed that the use of Spanish was a significant factor in the employer’s decision. See id. at 268.

We explained that neither Title VII nor common understanding “equates national origin with the language that one chooses to speak,” and noted that the English-only rule was not applied to the employee as a “covert basis for national origin discrimination.” Id. Though the employee argued that he was discriminated against on the basis of national origin “because national origin influences or determines his language preference,” we were unpersuaded because the employee was bilingual and was allowed to speak Spanish during breaks. Id. And even if the employer.had no genuine business need for the English-only policy, we said that “[n]ational origin must not be confused with ethnic or sociocultural traits or an unrelated status, such as citizenship or alienage,” Id. at 269. Citing Willingham, we emphasized that Title VII “focuses its laser of prohibition” on discriminatory acts based on matters “that are either beyond the victim’s power to alter, or that impose a burden on an employee on one of the prohibited bases.” Id.

The employee in Garcia also argued that the employer’s English-only policy was “discriminatory in impact, even if that result was not intentional, because it was likely to be violated only by Hispanic-Americans and that, therefore, they ha[d] a higher risk of incurring penalties.” Id. at 270. We rejected this argument as well because “there is no disparate impact if the rule is one that the affected employee can readily observe and nonobservance is a matter of individual preference,” and Title VII “does not support an interpretation that equates the language an employee prefers to use with his national origin.” Id.

What we take away from Willing-ham and Garcia is that, as a general matter, Title VII protects persons in covered categories with respect to their immutable characteristics, but not their cultural practices; See Willingham, 507 F.2d at 1092; Garcia, 618 F.2d at 269. And although these two decisions have been criticized by some, see, e.g., Camille Gear Rich, Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future of Title VII, 79 N.Y.U. L. Rev. 1134, 1213-21 (2004), we are not free, as a later panel, to discard the immutable/mutable distinction they set out. See Cohen v. Office Depot, Inc., 204 F.3d 1069, 1076 (11th Cir. 2000) (“[T]he prior panel precedent rule is not dependent upon a subsequent panel’s appraisal of the initial decision’s correctness. Nor is the application of the rule dependent upon the skill of the attorneys or wisdom of the judges involved in the prior decision — upon what was argued or considered.”).

We recognize that the distinction between. immutable and mutable characteristics of race can sometimes be a fine (and difficult) one, but it is a line that courts have drawn. So, for example, discrimination on the basis of black hair texture (an immutable characteristic) is prohibited by Title VII, while adverse action on the basis of black hairstyle (a mutable choice) is . not. Compare, e.g., Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 168 (7th Cir. 1976) (en banc) (recognizing a claim for racial discrimination based on the plaintiffs allegation that she was denied a promotion because she wore her hair in a natural Afro), with, e.g., Rogers v. Am. Airlines, Inc., 527 F.Supp. 229, 232 (S.D.N.Y. 1981) (holding that a grooming policy prohibiting an all-braided hairstyle did not constitute racial discrimination, and distinguishing policies that prohibit Afros, because braids are not an immutable characteristic but rather “the product of ... artifice”). As one commentator has put it, “the concept of immutability,” though not perfect, “provides a rationale for the protected categories encompassed within the antidiscrimination statutes.” Sharona Hoffman, The Importance of Immutability in Employment Discrimination Law, 52 WM. & MARY L. Rev. 1483, 1514 (2011).

Critically, the EEOC’s proposed amended complaint did not allege that dreadlocks themselves are an immutable characteristic of black persons, and in fact stated that black persons choose to wear dreadlocks because that hairstyle is historically, physiologically, and' culturally associated with their race. That dreadlocks are a “natural outgrowth” of the texture of black hair does not make them an immutable characteristic of race. Under Willing-ham and Garcia, the EEOC failed to state a plausible claim that CMS intentionally discriminated against Ms. Jones on the basis of her race by asking her to cut her dreadlocks pursuant to its race-neutral grooming policy. The EEOC’s allegations — individually or collectively — do not suggest that CMS used that policy as proxy for intentional racial discrimination.

c

The EEOC admitted in its' proposed amended complaint that CMS’ grooming policy is race-neutral,’but claimed that a “prohibition on dreadlocks in the workplace constitutes race discrimination” because dreadlocks are a racial characteristic, i.e., they “are a manner of wearing the ham that is physiologically and culturally associated with people of African descent.” So, as noted earlier, the claim that CMS intentionally discriminated against Ms. Jones on the basis of her race depends on the EEOC’s conception of what “race” means (and how far it extends) under Title VII. See Br. of EEOC at 20 (“In the Title VII context, if the individual expression is tied to a protected race, discrimination based on such expression is a violation of the law.”).

In support of its interpretation of Title VII, the EEOC relies on its own Compliance Manual. See EEOC Compliance Manual, § 15-11, at 4 (2006) (“Title VII prohibits employment discrimination against a person because of cultural characteristics often linked to race or ethnicity, such as- a person’s name, cultural dress and grooming practices, or accent or manner of speech.”). But even if we could ignore Willingham and Garcia, the Compliance Manual does not save the day for the EEOC.

“[T]he rulings, interpretations, and opinions” of an agency charged with enforcing a particular statute, “while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Skidmore u Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). The Compliance Manual, therefore, is entitled to deference “only to the extent that [it has] the power to persuade.” Christensen v. Harris Cty., 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (citation and internal quotation marks omitted). Factors relevant to- determining the persuasiveness of the Compliance Manual, and thus the weight given to the EEOC’s guidance, include “the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements[.]” Skidmore, 323 U.S. at 140, 65 S.Ct. 161.

The Compliance Manual contravenes the position the EEOC took in an administrative appeal less than a decade ago. See Thomas v. Chertoff, Appeal No. 0120083515, 2008 WL 4773208, at *1 (E.E.O.C. Office of Federal Operations Oct. 24, 2008) (concluding, in line with federal cases like Willingham, that a grooming policy interpreted to prohibit dreadlocks and similar hairstyles lies “outside the scope of federal employment discrimination statutes,” even when the prohibition targets “hairstyles generally associated with a particular race”). Because the EEOC has not provided a reasoned justification for changing course in the Compliance Manual, and has opted not to address Thomas in its reply brief, we choose to not give its guidance much deference or weight in determining the scope of Title VU’s prohibition of racial discrimination. See, e.g., Young, 135 S.Ct. at 1352 (declining to rely significantly on the EEOC Compliance Manual because its guidelines were promulgated recently, took a position about which the EEOC’s previous guidelines were silent, and contradicted positions the EEOC had previously taken).

The Compliance Manual also runs headlong into a wall of contrary caselaw. In the words of a leading treatise,’ “[c]ourts generally have upheld facially neutral polides regarding mutable characteristics, such as facial hair, despite claims that the policy has an adverse impact on members of a particular race or infringes on the expression of cultural pride and identification.” BARBARA LlNDEMANN & PAUL GROSSMAN, 1 EMPLOYMENT DISCRIMINATION LAW 6-5 (5th ed. 2012).

As far as we can tell, every court to have considered the issue has rejected the argument that Title VII protects hairstyles culturally associated with race. See Cooper v. Am. Airlines, Inc., 149 F.3d 1167, at *1 (4th Cir.1998) (upholding district court’s 12(b)(6) dismissal of claims based on a grooming policy requiring that braided hairstyles be secured to the head or at the nape of the neck); Campbell v. Alabama Dep’t of Corr., No. 2:13-CV-00106-RDP, 2013 WL 2248086, at *2 (N.D. Ala. May 20, 2013) (“A dreadlock hairstyle, like hair length, is not an immutable characteristic.”); Pitts v. Wild Adventures, Inc., No. CIV.A.7:06-CV-62-HL, 2008 WL 1899306, at *5-6 (M.D. Ga. Apr. 25, 2008) (holding that a grooming policy which prohibited dreadlocks and cornrows was outside the scope of federal employment discrimination statutes because it did. not discriminate on the basis of immutable characteristics); Eatman v. United Parcel Serv., 194 F.Supp.2d 256, 259-67 (S.D.N.Y. 2002) (holding that an employer’s policy prohibiting “unconventional” hairstyles, including dreadlocks, braids, and cornrows, was not racially discriminatory in violation of Title VII); McBride v. Lawstaf, Inc., No. CIV. A.1:96-CV-0196C, 1996 WL 755779, at *2 (N.D. Ga. Sept. 19, 1996) (holding that a grooming policy prohibiting braided hairstyles does not violate Title VII); Rogers, 527 F.Supp. at 232 (holding that a grooming policy prohibiting an all-braided hairstyle did not constitute racial discrimination, and distinguishing policies that prohibit Afros, because braids are not an immutable characteristic but rather “the product of ... artifice”); Carswell v. Peachford Hosp., No. C80-222A, 1981 WL 224, at *2 (N.D. Ga. May 26, 1981) (“There is no evidence, and this court cannot conclude, that the wearing of beads in one’s hair is an immutable characteristic, such as national origin, race, or sex. Further, this court cannot conclude that the prohibition of beads in the hair by an employer is a subterfuge for discrimination.”); Wofford v. Safeway Stores, Inc., 78 F.R.D. 460, 470 (N.D. Cal. 1978) (explaining that the “even-handed application of reasonable grooming regulations has uniformly been held not to constitute discrimination on the basis of race”) (internal citations omitted); Thomas v. Firestone Tire & Rubber Co., 392 F.Supp. 373, 375 (N.D. Tex. 1975) (holding that a grooming policy regulating hair length and facial hair, which was applied evenhandedly to employees of all races, did not violate Title VII or 42 U.S.C. § 1981). See also Brown v. D.C. Transit System, 523 F.2d 725, 726 (D.C. Cir. 1975) (rejecting claim by black male employees that race-neutral grooming regulation, which prohibited most facial hair, violated Title VII despite contention by employees that the regulation was “an ‘extreme and gross suppression of them as black men and (was) a badge of slavery’ depriving them ‘of their racial identity and virility’ ”).

D

We would be remiss if we did not ac-knowlédge that, in the last several decades, there have been some calls for courts to interpret Title VII more expansively by eliminating the biological conception -of “race” and encompassing cultural characteristics associated with race. But even those calling for such an interpretive change have different visions (however subtle) about how “race” should be defined. Compare, - e.g., Ian F. Haney Lopez, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 Harv. C.R.C.L. L. Rev. 1, 7 (1994) (defining “race” as “a vast group of people loosely bound together by historically contingent, socially- significant elements of their morphology and/or ancestry”), and Rich, Performing Racial and Ethnic Identity, 79 N.Y.U. L. Rev. at 1142 (“There is an urgent need to redefine Title VII’s definition of race and ethnicity to include both biological, visible racial/ethnic features and performed features associated with racial and ethnic identity.”), with, e.g., D. Wendy Greene, Title VII: What’s Hair (and Other Race-Based Characteristics) Got to Do With It?, 79 U. Colo. L. Rev. 1355, 1385 (2008) (“Race includes physical appearances and behaviors that society, historically and presently, commonly associates with a particular racial group, even when the physical appearances and behavior are not ‘uniquely’ or ‘exclusively’ ‘performed’ by, or attributed to a particular racial group.”), and Barbara J. Flagg, Fashioning a Title VII Remedy for Transparently White Subjective Decision-making, 104 Yale L. J. 2009, 2012 (1995) (suggesting that discrimination on the basis of race might include “personal characteristics that ... intersect seamlessly with [one’s racial] self-definition”).

Yet the call for interpreting “race” as including culture has not been unanimous. This is in part because culture itself is (or can be) a very broad and ever-changing concept. See, e.g., Richard T. Ford, Race as Culture: Why Not?, 47 U.C.L.A. L. Rev. 1803,1813 (2000) (“Culture is a much more problematic category for legal intervention than race, because culture in a broad sense encompasses almost any possible motivation for human behavior”)- Cf. Annelise Riles, Cultural Conflicts, 71 L. & Contemp. Peobs. 273, 285 (2008) (“[C]ultures are hybrid, overlapping, and creole: forces from trade to education to migration to popular culture and transnational law ensure that all persons participate in multiple cultures at once. Cultural elements circulate globally, and they are always changing. From this point of view, ‘culture’ is more of a constant act of translation and re-creation or re-presentation than it is a fixed and given thing.”).

Assuming that general definitional consensus could be achieved among those who advocate the inclusion of culture within the meaning of “race,” and that courts were willing to adopt such a shared understanding of Title VII, that would only be the beginning of a difficult interpretive battle, and there would be other very thorny issues to confront, such as which cultural characteristics or traits to protect. See, e.g., Kenji Yoshino, Covering, 111 Yale L. J. 769, 893 (2002) (“Even [in] ... a culture-race analysis ... one must still ask whether covering demands pertaining to grooming are sufficiently constitutive of race to violate bans on race discrimination.”). There would also be the related question of whether cultural characteristics or traits associated with one racial group can be absorbed by or transferred to members of a different racial group. At oral argument, for example, the EEOC asserted that if a white person chose to wear dreadlocks as a sign of racial support for her black colleagues, and the employer applied its dreadlocks ban to that person, she too could assert a race-based disparate treatment claim.

The resolution of these issues, moreover, could itself be problematic. See Ford, Race as Culture, 47 U.C.L.A. L. Rev. at 1811 (explaining that recognizing a right to cultural protection, under the ambit of “race” would require “courts to determine which expressions are authentic and therefore deserving of protection,” and the “result will often be to discredit anyone who does not fit the culture style ascribed to her racial group”). Even if courts prove sympathetic to the “race as culture” argument, and are somehow freed from current precedent, how are they to choose among the competing definitions of “race”? How are they (and employers, for that matter) to know what cultural practices are associated with a particular “race”? And if cultural characteristics and practices are included as part of “race,” is there a principled way to figure out which ones can be excluded from Title VU’s protection?

We cannot, and should not, forget that we — and courts generally — are tasked with interpreting Title VII, a statute enacted by Congress, and not with grading competing doctoral theses in anthropology or sociology. Along these lines, consider the critique by'Richard Ford of the attempt to have Title VII protect cultural characteristics or traits associated with race:

Once a status is ascribed, it is “immutable” in the pragmatic sense that the individual cannot readily alter it. This is the sense in which immutability is relevant to anti-discrimination law.
The mutability of a racial characteristic then, is strictly speaking,- irrelevant, but not because — as difference discourse would have it — anti-discrimination law should prohibit discrimination based on mutable as well as immutable racial characteristics, but rather because racial characteristics generally are irrelevant. And it is quite right to say that anti-discrimination law prohibits discrimination on the basis of immutable characteristics.” But it does not follow that the immutable characteristics in question are characteristics of race; instead they are any characteristic of potential plaintiffs that may be proxies for racial status.
This cuts against some common locutions that the law prohibits discrimination against racial groups; that it prohibits discrimination on the basis of racial characteristics; that it protects racial minorities; worst of all that it “protects race.” On my formulation it does none of these. Indeed it could not do these things because to do them it would first require a definition of a racial group, racial characteristic, and/or race — none of which courts have readily [at] hand. Instead, law prohibits discrimination on the basis of race — something it can do without knowing what race is and indeed without accepting that race is something that is knowable. To prohibit discrimination on the basis of race, we need only know that there is a set of ideas about race that many people accept and decide to prohibit them from acting on the basis of these ideas.

Richard Ford, Raoial Culture: A Critique 103 (2005).

Our point is not to take a stand on any side of this debate — we are, after all, bound by Willingham and Garcia — but rather to suggest that, given the role and complexity of race in our society, and the many different voices in the discussion, it may not be a bad idea to try to resolve through the democratic process what “race” means (or should mean) in Title VII. Cf. Juan F. Perea, Ethnicity and Prejudice: Reevaluating ‘National Origin Discrimination under Title VII, 35 Wm. & Mary L. Rev. 805, 861 (1994) (proposing that Congress amend Title VII to protect against discrimination based on ethnic traits).

V

Ms. Jones told CMS that she would not cut her dreadlocks in order to secure a job, and we respect that intensely personal decision and all it entails. But, for the reasons we have set out, the EEOC’s original and proposed amended complaint did not state a plausible claim that CMS intentionally discriminated against Ms. Jones because of her race. The district court therefore did not err in dismissing the original complaint and in concluding that the proposed amended complaint was futile.

AFFIRMED.

      . We conclude that the notice of appeal was timely because the EEOC's motion for leave to amend — which in part challenged the basis for the district court’s dismissal of the original complaint — is properly treated as a Rule 59(e) motion which tolled the time for appeal. See Giuffre v. Deutsche Bank Nat. Trust Co., 759 F.3d 134, 137 (1st Cir. 2014) (holding that a plaintiff's post-judgment motion for leave to file an amended complaint tolled the time to appeal because "[i]n substance, [the] motion challenged the legal foundation of the dismissal order and called on the judge to either revoke that order or alter it to allow him leave to amend”); Trotter v. Regents of Univ. of N.M., 219 F.3d 1179, 1183 (10th Cir. 2000) (holding that a Rule 15 motion filed within the time limit for filing a Rule 59(e) .motion tolls the time for fifing a notice of appeal); Bodin v. Gulf Oil Corp., 877 F.2d 438, 440 (5th Cir. 1989) (holding that a motion for leave to amend constituted a timely Rule 59(e) motion, and thus, the time for filing a notice of appeal commenced when the district court denied the motion).

      . Statistical evidence, of course, can sometimes be probative of intentional discrimination, see, e.g., Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335-40 & n.20, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), but'the EEOC did not allege, and does not claim, that there is statistical evidence showing (or allowing a reasonable inference of) a pattern or practice of disparate treatment on the part of CMS. Nor is there any claim that CMS applied its grooming policy differently to black applicants or employees, as was the case in Hollins v. Atl. Co., Inc., 188 F.3d 652, 661 (6th Cir. 1999).

      . Of note, some contemporary judicial'decisions and dictionaries still provide understandings of "race” tied to biological and physical characteristics. See, e.g., Abdullahi v. Prada USA Corp., 520 F.3d 710, 712 (7th Cir. 2008) (Posner, J.) ("A racial group as the term is generally used in the United States today is a group having a common ancestry and distinct physical traits.”); 2 Shorter Oxford English Dictionary 2445 (5th ed. 2002) (defining "race” in part as "a group or set, esp. of people, having a common feature or features,” or "a group of living things connected by common descent or origin,” or "[a]ny of the major divisions of humankind, having in common distinct physical features or ethnic background”). And in the Geneva Convention Implementation Act of 1987, legislation that post-dated Title VII by about two decades, Congress defined the term "racial group” as "a set of individuals whose identity as such is distinctive in terms of physical characteristics or biological descent.” 18 U.S.C. § 1093(6). By citing to this provision, we do not mean to suggest that the definition of a term in one statute can be automatically used when the same term is undefined in a separate statute. We merely point out that in the late 1980s Congress still thought of "race,” in at least one context, as including common physical characteristics.

      . On several occasions we have reaffirmed the central holding of Willingham that Title VII protects against discrimination based on immutable characteristics, i.e., those that an employee is bom with or cannot change. See, e.g., Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1389 (11th Cir. 1998); Gilchrist v. Bolger, 733 F.2d 1551, 1553 (11th Cir. 1984).

      . The EEOC did assert that dreadlocks are an immutable characteristic of black persons, but it made that assertion (which conflicted with what the proposed amended complaint alleged) only in its motion for leave to amend. See D.E, 21 at 1. We do not consider this assertion, for facts contained in a motion or brief "cannot substitute for missing allegations in the complaint." Kedzierski v. Kedzierski, 899 F.2d 681, 684 (7th Cir. 1990). Accord Associated Press v. All Headline News Corp., 608 F.Supp.2d 454, 464 (S.D.N.Y. 2009) ("Conclusory assertions in a memorandum of law are not a substitute for plausible allegations in a complaint.”).

      . Religion is, of course, different from race in many ways, but it bears noting that Congress amended Title VII in 1972 to expand protection for "religious observance and practice.” See 42 U.S.C. §2000e(j); E.E.O.C. v. Abercrombie & Fitch Stores, Inc., — U.S. —, 135 S.Ct. 2028, 2034, 192 L.Ed.2d 35 (2015). It has not, however, prohibited discrimination on the basis of cultural practices associated with race.


source: Caselaw Access Project

author: WALKER, Circuit Judge: JORDAN, Circuit Judge,

license: Public Domain

text:
    Ilir SPABO, Petitioner, v. UNITED STATES ATTORNEY GENERAL, Respondent.
    No. 15-11299
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 09/19/2016

      William Michael Cavanaugh, Law Office of William M. Cavanaugh, WEST PALM BEACH, FL, for Petitioner.
    Ilir Spaho, CRAWFORDVILLE, FL, pro se.
    Erica B. Miles, Regina Byrd, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Enitan Otunla, U.S. Department of Justice, Office of Immigration Litigation, OIL, Office of Immigration Litigation, WASHINGTON, DC, John Bulger, INS Director, Division IV, Michelle Ressler, District Counsel’s Office, USICE,- MIAMI, FL, for Respondent.
    Before MARCUS, JORDAN, and WALKER, Circuit Judges.

       Honorable John M. Walker, Jr., United States Circuit Judge for the Second Circuit, sitting by designation.

   WALKER, Circuit Judge:

Ilir Spaho seeks review of the Board of Immigration Appeals’ (“the Board”) order upholding the Immigration Judge’s (“IJ”) finding that his conviction for violating Florida Statute § 893.13(l)(a)(l) constituted an aggravated felony and therefore rendered him removable under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(A)(iii). After careful review, we affirm.

I.

Spaho is a citizen of Albania but has been a lawful permanent resident of the United States since 2002. On May 14, 2012, he pled no contest to one count of Trafficking in Illegal Drugs- 4 <14 Grams in violation of Florida Statute § 893.135(l)(c)(l); two counts of Sale of a Controlled Substance in violation of Florida Statute § 893.13(l)(a)(l); and two counts of Possession with Intent to Sell, Deliver, or Manufacture a Controlled Substance in violation of Florida Statute § 893.13(l)(a)(l). He was sentenced to forty months’ imprisonment.

Immediately following his conviction- and sentencing, the Department of Homeland Security (“DHS”) charged him with re-movability on two grounds: (1) under § 237(a)(2)(B)(i) of the INA, 8 U.S.C. § 1227(a)(2)(B)®, as a noncitizen convicted of a violation of law relating to a controlled substance, and (2) under § 237(a)(2)(A)(iii) of the INA as a noncitizen convicted of an aggravated felony based upon his 2012 convictions. Spaho conceded removability under § 237(a)(2)(B)® but not under § 237(a)(2)(A)(iii).

Removability under § 237(a)(2)(B)® would not bar Spaho from applying for asylum, cancellation of removal, and withholding of removal, but removability under §, 237(a)(2)(A)(iii) would render him ineligible for such relief. See Moncrieffe v. Holder, — U.S. —,133 S.Ct. 1678, 1682, 185 L.Ed.2d 727 (2013). He argued that he is not removable under § 237(a)(2)(A)(iii) because none of his 2012 convictions were convictions for aggravated felonies.

In July of 2013, the IJ rejected Spaho’s arguments and found him removable under § 237(a)(2)(A)(iii) on the basis that his conviction under § 893.135(l)(c)(l) constituted an aggravated felony under the “drug trafficking crime” component of the aggravated felony , definition. Section 237(a)(2)(A)(iii) of the INA specifies re-movability based on. an aggravated felony and includes within that category, as set forth in 8 U.S.C. § 1101(a)(43)(B), “illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18).” The IJ did not address whether Spaho’s other 2012 convictions were aggravated felony convictions.

Having been convicted of an offense that the IJ found to be an aggravated felony, Spaho became statutorily ineligible for asylum, cancellation of removal, and withholding of removal. See Moncrieffe, 133 S.Ct. at 1682. He remained eligible only for deferral of removal under -the Convention Against Torture (“CAT”). See id, at 1682 n.l.

On July 11, 2014, Spaho submitted an application for cancellation of removal and asked the IJ to reconsider its aggravated felony finding in light of our decision in Donawa v. U.S. Attorney General, 735 F.3d 1275 (11th Cir. 2013), that a conviction under Florida Statute § 893.13(l)(a)(2) was not a “drug trafficking crime” under 8 U.S.C. § 1101(a)(43)(B). On August 25, 2014, DHS filed a second brief in support of the aggravated felony charge, citing Matter of L-G-H, 26 I. & N, Dec. 365, 368 (BIA 2014), in which the Board held that, although § 893.13(l)(a) did not fit under the “drug trafficking crime” component, an offense under the statute could still qualify as an aggravated felony under the broader “illicit trafficking” component.

On November 12, 2014, the IJ held that Spaho was statutorily ineligible for asylum, cancellation of removal, and withholding of removal because his § 893,13(l)(a)(l) conviction for sale of a-controlled substance was an aggravated felony conviction under the “illicit. trafficking” component of 8 U.S.C. § 1101(a)(43)(B). The IJ did not address whether Spaho’s conviction under § 893.135(l)(c)(l) — the conviction on whieh the IJ’s earlier July 2013 ruling had focused — constituted an aggravated felony conviction as well. The IJ also found that Spaho was not entitled to deferral of removal under the CAT because he failed to establish that it was more likely than not that he would be tortured by or with the acquiescence of the Albanian government. On February 26, 2015, the Board of Immigration Appeals affirmed the IJ’s decision.

Spaho now appeals. He argues that the Board erroneously determined that § 893.13(l)(a)(l) is divisible and, as a' result, erroneously applied the modified categorical approach rather than the categorical approach in- concluding that his conviction under § 893.13(l)(a)(l) constituted an aggravated felony conviction. He does not challenge the denial of his application for deferral of removal under the CAT.

II

We review only the decision of the Board “except to the extent that [the Board] expressly adopts the IJ’s opinion,” in which case we “review the IJ’s decision as well.” Najjar v. Ashcroft, 257 F,3d 1262, 1284 (11th Cir. 2001). Here the Board did not expressly adopt the IJ’s opinion. “We review de novo whether a conviction qualifies as an ‘aggravated felony.’ ” Accardo v. U.S. Atty. Gen., 634 F.3d 1333, 1335 (11th Cir. 2011),

III

To assess whether Spaho’s state conviction was an aggravated felony conviction, the Board first had to decide whether § 893.13(l)(a)(l) is divisible and thus subject to the modified categorical approach instead of the categorical approach in comparing the elements of § 893.13(l)(a)(l) with the elements of the corresponding aggravated felony of “illicit trafficking in a controlled substance.” See Moncrieffe, 133 S.Ct. at 1685.

A state statute is divisible when it “lists a number of alternative elements that effectively create several different crimes.” Donawa, 735 F.3d at 1281. Conversely, a state statute is indivisible when it contains a single set of elements that are not set forth in the alternative. Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). Such a statute remains indivisible even if it “enumerates various factual means of committing a single, element.” Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016).

The Supreme Court held in Descamps v. United States that the categorical approach applies to indivisible statutes, whereas the modified categorical approach applies to divisible statutes (i.e. statutes that “comprise[ ] multiple, alternative versions of a crime”). 133 S.Ct. at 2281-83.

Under the categorical approach, the court examines solely “whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding aggravated felony.” Moncrieffe, 133 S.Ct. at 1684 (internal quotation marks omitted). The court must “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime,” and conviction under the state statute will only constitute a conviction for the generic offense “if the statute’s elements are the same as, or narrower than, those of the generic offense.” Descamps, 133 S.Ct. at 2281. If the. statute can be violated by an act that does not fit within the generic offense, then the statute cannot qualify as an aggravated felony under the categorical approach, and this is true even if the actual conduct of the defendant fell within the generic crime. See id.

Under the modified categorical approach that applies to statutes that are divisible into alternative crimes, on the other hand, the court may “consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction” and then “do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.” Id.

In- this case, the Board was correct in upholding the IJ’s determination that § 893.13(l)(a)(l) is divisible. In determining divisibility, we focus primarily on the statutory text. See United States v. Howard, 742 F.3d 1334, 1346 (11th Cir. 2014). Section 893.13(l)(a) provides in relevant part that “a person may not sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a .controlled substance.” The text delineates six discrete alternative elements: sale, delivery, manufacture, possession with intent to sell, possession with intent to deliver, and possession with intent to manufacture. Accordingly, the statute is divisible.

We reject Spaho’s argument that § 893.13(l)(a) contains not a set of alternative elements but rather a single element that can be satisfied by a series of alternative means. To determine whether a statute sets forth alternative elements or means, we take guidance from state court decisions. Mathis, 136 S.Ct. at 2256. Here, Florida case law supports our conclusion that the listed items in § 893.13(l)(a) are elements rather than means. In Tyler v. State, the District Court of Appeal of Florida discussed “clear direction” from the Supreme Court of Florida “that possession with intent to sell, on the one hand, and the actual sale, on the other, of the same illicit substance should be viewed, not as alternative ways in which section 893.13(l)(a) could be violated, but as two separate crimes.” 107 So.3d 547, 549-51 (Fla. Dist. Ct. App. 2013). In State v. McCloud, one of the cases referred to in Tyler, the Supreme Court of Florida decided that possession and sale are separate crimes such that both can be charged in the same indictment without violating the Double Jeopardy Clause. 577 So.2d 939, 940 (Fla. 1991). In Thomas v. State, the District Court of Appeal of Florida clarified that possession and sale are separate crimes even if both offenses are proscribed by the same statute and pertain to the same illicit substance. 61 So.3d 1157, 1158 (Fla. Dist. Ct. App. 2011).

We also find unpersuasive Spaho’s argument that the divisibility determination made by the Board in his case conflicts with our holding in Donawa. To be sure, Donawa applied the categorical approach for indivisible statutes in finding that a conviction under § 893.13(l)(a)(2) did not qualify as an aggravated felony under the drug trafficking component of 8 U.S.C. § 1101(a)(43)(B). 735 F.3d at 1281-82. But Donawa dealt with a different and narrower question than that presented here, which was whether an affirmative defense defined by Florida Statute § 893.101 (which includes a mens rea element) renders § 893.13(l)(a)(2) (which does not otherwise include a mens rea element) divisible by “effectively creating] a separate offense.” Id. at 1282. While Donawa found the affirmative defense insufficient to render § 893.13(l)(a)(2) divisible, the case did not engage in a textual analysis of § 893.13(l)(a) to ascertain its divisibility. Specifically, Donawa did not analyze the actus reus element of § 893.13(l)(a) to ascertain whether the separate acts forbidden by the statute rendered it divisible by establishing multiple, alternative offenses of which a defendant could be convicted. Indeed, the Court had no reason to engage in that analysis because the Florida statute’s lower mens rea requirement rendered it categorically not a “drug trafficking crime.” However, since the “illicit trafficking” aggravated felony does not have the same heightened mens rea requirement as drug trafficking crimes, see Matter of L-G-H, 26 I. & N. Dec. 365, 370 (BIA 2014), we cannot stop where the Donawa Court did. Performing the appropriate textual analysis here, we agree with the Board that the statute is divisible with respect to the “act” element and that the modified categorical approach applies.

Under the modified categorical approach, Spaho’s conviction constitutes an “illicit trafficking” aggravated felony. Some of the alternative elements set forth in § 893.13(l)(a) involve “illicit trafficking” and some do not. An “illicit trafficking” aggravated felony includes “any state, federal, or qualified foreign felony conviction involving the unlawful trading or dealing of any controlled substance.” Matter of Davis, 20 I. & N. Dec. 536, 541 (BIA 1992). “[U]nlawful trading or dealing” requires commercial conduct. Id.; see Lopez v. Gonzales, 549 U.S. 47, 58, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006) (“ ‘[Trafficking’ means some sort of commercial dealing.”). Two of the alternative elements of § 893.13(l)(a), sale and possession with intent to sell, are inherently commercial and qualify under the definition of an illicit trafficking aggravated felony while the other four alternatives may not be commercial and may not qualify. Spaho was adjudged guilty of selling a controlled substance, and therefore his conviction qualifies because the state provision, when read to include only the sale crime and not the other alternative crimes, easily falls within the generic “illicit trafficking” offense.

In sum, we find that the Board properly held that § 893.13(l)(a)(l) was divisible, applied the modified categorical approach for divisible statutes, and found Spaho removable under § 237(a)(2)(A)(iii) of the INA as a noncitizen convicted of an aggravated felony.

For these reasons, we deny Spaho’s petition for review.

PETITION DENIED.

JORDAN, Circuit Judge,

dissenting:

The question in this case is whether a narcotics conviction for violation of Fla. Stat. § 893.13(l)(a)(l) is an “aggravated felony” under the INA because it constitutes “illicit trafficking in a controlled substance (as defined in [21 U.S.C. § 802]), including a drug trafficking crime (as defined in [18 U.S.C. § 924(c) ]).” 8 U.S.C. § 1101(a)(43)(B). The majority answers that question in the affirmative in part by blessing the BIA’s use of the so-called “modified categorical” approach. See Maj. Op. at 1177-78. ■

With respect, I dissent. In a published opinion issued just three years ago, we used the “categorical” approach to determine whether a conviction for violation of § 893.13(l)(a)(2) was an “aggravated felony” under the “drug trafficking crime” language of § 1101(a)(43)(B) of the INA, while expressly rejecting the government’s invitation to use the “modified categorical” approach. See Donawa v. Atty. Gen., 735 F.3d 1275, 1280-83 (11th Cir. 2013). We are bound by Donawa to apply the “categorical” approach in deciding whether § 893.13(l)(a)(l) — which differs from § 893.13(l)(a)(2) only insofar as the type of drug (and penalty) involved — is an “aggravated felony” under the “illicit trafficking” language of § 1101(a)(43)(B) of the INA.

I

“When the Government alleges that a state conviction qualifies as an ‘aggravated felony’ under the INA, we generally employ a ‘categorical approach’ to determine whether the state offense is comparable to an offense listed in the INA. Under this approach we look ‘not to the fact's of the particular prior case,’ but instead to whether ‘the state statute defining thé crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony.” Moncrieffe v. Holder, — U.S. —, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (citations omitted).

In Donawa, we held that possession of marijuana with intent to sell or deliver, in violation of § 893.13(l)(a)(2), was not an “aggravated felony” under .§ 1101(a)(43)(B) of the INA because, as a matter of law, it was not a “drug trafficking crime” as defined in 18 U.S.C. § 924(c). As we explained, a “person could be .convicted [under the Florida statute] ... without any knowledge of the nature of the substance in his possession,” and that made the Florida offense different than the federal analogue — 21 U.S.C. § 841(a)(1) — which “requires that the defendant had knowledge of the nature of the substance in his possession.” 735 F.3d at 1281-82.

In coming, to this conclusion, we used the “categorical” approach described in Moncrieffe and earlier cases. See id. at 1280, 1282, 1283. And we expressly rejected the government’s invitation to apply.the “modified categorical” approach because § 893.13(1) was not divisible, i.e., it did not list “a number of alternative elements that effectively create several different crimes, some of which are aggravated felonies and some.of which are not.” Id. at 1282. We remanded to the BIA with directions that, if it wished to consider whether a conviction under § 893.13(l)(a)(2) was an “aggravated felony” because it was an “illicit trafficking” offense, it “should apply the categorical approach ... assuming the least culpable conduct under the statute and asking whether it would necessarily be considered an illicit trafficking offense punishable as a felony under federal law.” Id. at 1283 (citing Moncrieffe, 133 S.Ct. at 1685).

I was a member of the panel in Donawa, and believe that it was correctly decided, but that is not my point here. The important aspect of Donawa, for our purposes, is 'that it applied the “categorical” approach to" subsection (a)(2) of § 893.13(1), and eschewed application of the “modified categorical” approach because it concluded that the statute was not divisible. It is difficult for me to understand how we can now apply the “modified categorical” approach in the face of Donawa. If, as we held in Donawa, § 893.13(1) is not divisible, then the “modified categorical” approach cannot be used here.

II

The problem can be traced to Matter of L-G-H, 26 I. & N. Dec. 365, 2014 WL 4105411 (BIA 2014), which the BIA decided nine months after Donawa. The BIA in L-G-H cited to and discussed Donawa, but then inexplicably failed to follow its remand instructions. Instead of applying the “categorical” approach, as Donawa had instructed, to determine whether a conviction for violation of § 893.13(l)(a)(l) is an “aggravated felony” because it is an “illicit trafficking” offense under § 1101(a)(43)(B), the BIA in L-G-H concluded — contrary to Donawa — that the Florida statute is divisible and applied the “modified categorical” approach. See L-G-H, 26 I. & N. Dec. at 371 (“we first find that [§ ] 893.13(l)(a) is divisible as to the offenses it prohibits”). In the present case, the BIA followed the rationale of L-G-H and again applied the “modified categorical” approach. See A.R. at 93-95.

A

The BIA erred in not following Donawa in L-G-H. First, the BIA has itself said on various occasions that it is bound by the precedent of the circuit where an immigration case arises. See, e.g., In re Ponce De Leon-Ruiz, 21 I. & N. Dec. 154, 159 (BIA 1996) (en banc); In re Zorilla-Vidal, 24 I. & N. Dec. 768, 769 (BIA 2009). Second,-the BIA did not even attempt to explain why it was justified in rejecting Donawa and holding — contrary to . Donawa — that § 893.13(1) is divisible.

Before the immigration judge and the BIA, Mr. Spaho expressly relied on Dona-wa and challenged the rationale and holding of L-G-H. See, e.g., A.R. at 59-60, 86-87. And in his brief to us, Mr. Spaho has again asserted that L-G-H was wrongly decided and argued that we must use the “categorical” approach, as Donawa instructed. See Br. for Petitioner at 14-19. Given Mr. Spaho’s arguments, I do not see how we can fail to confront, head-on, whether L-G-H should be abrogated.

B

Under our prior panel precedent rule, it is irrelevant to us whether Donawa is correct, or whether the’ panel in Donawa actually considered all possible issues, theories, and arguments. See Cohen v. Office Depot, 204 F.3d 1069, 1076 (11th Cir. 2000) (en banc) (explaining that the prior panel precedent rule is not dependent on “a subsequent panel’s appraisal of the initial decision’s correctness”); Tippitt v. Reliance Standard Life, 457 F.3d 1227, 1234 (11th Cir. 2006) (“a prior panel precedent cannot be circumvented or ignored on the basis of arguments not made to or considered by the prior panel”). What matters to us is what Donawa decided. I would hold that the “categorical” approach used by Dona-wa governs here, and that the BIA’s decision in L-G-H should be abrogated.

C

Unlike my colleagues, I do not believe that Donawa can be distinguished on the ground articulated in the majority opinion. Donawa itself considered the effect of the affirmative defense of lack of knowledge, and yet still applied the “categorical” approach. So the affirmative defense, theory does not. allow us to sidestep Donawa. Compare Maj. Op. at 1178 with Donawa, 735 F.3d at 1282-83.

My colleagues also say Donawa “did not engage in a textual analysis of § '893.13(l)(a)(l) to ascertain its divisibility.” Maj. Op. at 1178. That observation, even if technically true, does not matter because § 893.13(l)(a)(2) and § 893.13(l)(a)(l) are the same except insofar as they reference different types of drugs (and their respective penalties).

I recognize that in this case we are addressing the “illicit trafficking” language of § 1101(a)(43)(B), and that Donawa addressed “drug trafficking,” which is a subset of “illicit trafficking.” But in both cases we are looking at the same Florida statute, § 893.13(1), and under Donawa we (and the BIA) must apply the “categorical” approach to determine whether a violation of that statute constitutes “illicit trafficking” under the INA. Stated differently, the question of what approach to use is antecedent to the question of whether a state conviction ultimately qualifies as an “aggravated felony” of one kind or another. See Moncrieffe, 133 S.Ct. at 1684.

I express no view on whether, using the “categorical” approach, a conviction under § 893.13(l)(a)(l) is an “illicit trafficldng” crime. That is a matter for the BIA to decide in the first instance, and I would remand to the BIA with instructions to perform the appropriate analysis.

Ill

Donawa rejected the argument that § 893.13(1) is divisible, and therefore declined to use the “modified categorical” approach. Due to the majority’s opinion today, we now have published precedent applying the “categorical” approach (and expressly rejecting the “modified categorical” approach) with respect to § 893.13(l)(a)(2) and the “drug trafficldng” language of § 1101(a)(43)(B), as well as published precedent applying the “modified categorical” approach with respect to § 893.13(l)(a)(l) and the “illicit trafficldng” language of § 1101(a)(43)(B). If there is a way to slice a strand of hair so thinly, I do not see it.

      . Two motions remain pending on the docket for this appeal. The first asks the court to hold its proceedings in abeyance until the Supreme Court of the United States decides Mathis v. United States, — U.S. —, 136 S.Ct. 894, 193 L.Ed.2d 788 (granting certiorari). The Supreme Court issued its opinion in Mathis on June 23, 2016, see Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), and the motion is therefore moot. The second is a motion by the Florida Association of Criminal Defense Lawyers (“FACDL”) seeking leave to file a brief of amicus curiae in support of the petitioner. This motion was filed on September 2, 2016, more than a year after the petitioner submitted his principal brief, and is therefore untimely. See Fed. R. App. P., 29(e)(brief of ami-cus curiae to be filed no later than seven days after the principal brief of the party being supported); see also 11th Cir. R. 29-2. Both motions are therefore denied.

      . Following Donawa, in Matter of L-G-H, 26 I. & N. Dec. 365 (BIA 2014), the BIA applied the modified categorical approach to hold that a conviction for the sale of cocaine under Fla. Stat. § 893.13(1 )(a)(l) qualified as an “illicit trafficking” aggravated felony. Id. at 373-74. As relevant here, the BIA held that " 'illicit trafficking offenses do not require a mens rea element with respect to knowledge of the illicit nature of the controlled substance, at least when accompanied, as [in the Florida statute], by an affirmative defense permitting a defendant to show that he or she had no such awareness, as well as by a requirement that the defendant be aware of the presence of the substance (apart from its illegality).” Id. at 371. Spaho does not challenge the correctness of the BIA's definition of illicit trafficking, and we express no opinion on it.

      . As the BIA explained in Matter of L-G-H, under the BIA’s longstanding definition, “illicit trafficking” requires a "commercial transaction,” or the "passing of goods from one person to another for money or other consideration.” 26 I. & N. Dec. at 371-72 & n.9. Because a “sale” under the Florida law categorically requires consideration, the BIA held that a conviction for the sale element of § 893.13(l)(a) involved a commercial transaction, and therefore met the BIA’s definition of illicit trafficking. Id. at 372-73.

      . In contrast, the "modified categorical” approach "applies to ‘state statutes that contain several different crimes, each described sepa-ralely.' In such cases, 'a court may determine which particular offense the non-citizen was convicted of by examining the charging document and jury instructions, or in the case of a guilty plea, the plea agreement, plea colloquy, or some comparable judicial record of the factual basis for the plea.' " Mellouli v. Lynch, — U.S. —, 135 S.Ct. 1980, 1986 n.4, 192 L.Ed.2d 60 (2015) (citation omitted).

      . I acknowledge that, with respect to other subsections of § 1101(a)(43), sometimes it is not appropriate to apply the "categorical” approach to determine whether a state conviction constitutes an "aggravated felony.” See, e.g., Nijhawan v. Holder, 557 U.S. 29, 35-40, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) (addressing § 1101(a)(43)(M)(i)).

      . The Fifth Circuit, in a case decided after Donawa, initially characterized § 893.13(1) as divisible but then used the "categorical” approach of Donawa and held that § 893.13(l)(a)(l) — the very provision at issue here — is not a "drug trafficking crime” constituting an "aggravated felony” under the INA. See Sarmientos v. Holder, 742 F.3d 624, 629-31 (5th Cir. 2014). Although Sarmientos is not on "all fours,” it is a bit odd to have a Fifth Circuit panel follow Donawa and its "categorical” approach as to § 893.13(l)(a)(l) while seeing an Eleventh Circuit panel do the opposite.