Last week, New York City became the first jurisdiction to pass legislation making black hairstyles a protected racial characteristic. This legislation is part of a national legal trend that affects employers nationwide.   

Guidance published last Monday by the NYC Commission on Human Rights states: "The New York City Human Rights Law ("NYCHRL") protects the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities. For Black people, this includes the right to maintain natural hair, treated or untreated hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state." 

The concept of "hair discrimination" is nothing new. In 1981, a federal court ruled that an employer's blanket "no beard" policy violated the law because it had a disparate impact on black employees. (A medical condition that makes shaving extremely painful is relatively common among black men, but practically non-existent among whites.) The court in that case held that a general "no beard" policy could be permissible so long as the employer made medical accommodations for affected employees.

Last year, UPS paid a whopping $4.9 million in an EEOC class discrimination lawsuit alleging that a workplace grooming policy amounted to religious discrimination. UPS had a policy prohibiting male employees from wearing beards or growing their hair below collar length - both of which can be religious practices. In a statement, the EEOC's lead trial attorney stated: "UPS's strict appearance policy has operated to exclude Muslims, Sikhs, Rastafarians, and other religious groups from equal participation and advancement in the workplace for many years." Although the policy did not overtly discriminate against any specific group, it still cost UPS dearly.

On the other end of the spectrum, the Eleventh Circuit Court of Appeals (covering Alabama, Florida, and Georgia) held in 2016 that an employer did not violate Title VII when it rescinded an applicant's job offer for refusing to cut off her dreadlocks. In the aftermath of this decision, however, several high profile employers came under public scrutiny for prohibiting certain hairstyles. For example, the United States Army revised its regulations in 2017 to allow dreadlocks after facing criticism that its grooming regulations unfairly targeted black servicewomen. The Navy followed suit last year, allowing braids, locs, and ponytails.

While employers in other parts of the country may be left scratching their heads, it is now clear in NYC that these practices violate the law:

  • Policies prohibiting twists, locs, braids, cornrows, Afros, Bantu knots, or fades which are commonly associated with black people.
  • Policies requiring employees to alter the state of their hair to conform to the company's appearance standards, including having to straighten or relax hair (i.e., use chemicals or heat).
  • Policies banning hair that extends a certain number of inches from the scalp, thereby limiting Afros. 

In a press release, the NYC Commission announced three trends it has seen in cases involving black employees:

  1. Being forced to wear their braided hair up when employees of other ethnicities can wear their long styles down.
  2. Being fired for wearing natural hair down.
  3. Being told that locs are unacceptable and being forced to change their hair as a condition of employment. 

With hair discrimination in the news, employers everywhere should exercise caution when enacting or enforcing grooming policies involving hair and beards.

Take-Aways for Employers:

  • Review and update your grooming and dress code policies to ensure they do not target hairstyles commonly associated with certain racial, ethnic, religious, or cultural identities.
  • Be wary of unclear or subjective policies, such as a policy banning "excessive" hairstyles.
  • Enforce grooming and dress code policies neutrally, making medical and religious accommodations as necessary.

Be aware that treating hairstyles and beards as protected racial or religious characteristics is a new development to watch in employment law.

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