Hair Styles May Be Protected Under Discrimination Laws

Q: Is it lawful to require employees or applicants to style their hair in a certain manner?

A: As with most employment-related questions, the answer is it depends.  While employers are generally allowed to adopt basic grooming policies, employers should seek to adopt policies that do not have a disparate impact on minorities and other persons protected by anti-discrimination laws.

In February 2019, the New York City Commission on Human Rights (“Commission”) generated headlines by releasing a legal enforcement guidance on race discrimination on the basis of hair.  The guidelines are designed to prohibit workplace grooming policies that may discriminate against Black people.  The Commission defines the term “Black people” to “include those who identify as African, African American, Afro-Caribbean, Afro-Latin-x/a/o or otherwise having African or Black ancestry.”  Per the Commission: “Bans or restrictions on natural hair or hairstyles associated with Black people are often rooted in white standards of appearance and perpetuate racist stereotypes that Black hairstyles are unprofessional.”  The Commission takes the position that the New York City Human Rights Law (“NYCHRL”) protects the right of Black people to maintain their natural hairstyle, which “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.”

According to the Commission, grooming or appearance policies that ban, limit, or prohibit natural hair and hairstyles often associated with Black people violate the NYCHRL anti-discrimination provisions, including the section prohibiting discrimination in employment. Employers prohibiting employees from wearing their hair in cornrows, Afros, and other hairstyles associated with Black people risk facing liability under the NYCHRL.  The Commission stated: “Black hairstyles are protected racial characteristics under the NYCHRL because they are an inherent part of Black identity.”  Under the NYCHRL, it is therefore discriminatory to refuse to hire a Black applicant with cornrows because the hairstyle does not project the “image” that a Company is trying to represent—and companies may not use customer preference or health and safety concerns as an excuse for a prejudiced policy.

The Commission noted in a footnote of its legal enforcement guidance that grooming or appearance policies that “generally target communities of color, religious minorities, or other communities protected under the NYCHRL are also unlawful.” The Commission gave as examples: (i) a Sikh applicant being denied employment because of his religiously-maintained uncut hair and turban, (ii) an Orthodox Jewish employee ordered to shave his beard and cut his payot (sidelocks and sideburns), (iii) a salesperson being required to shave his beard despite a medical condition that makes it painful to do so, (iv) an older employee with gray hair being threatened that she will lose her job if she does not color her hair, and (v) a male server being ordered to cut his ponytail where similar grooming policies are not imposed on female servers.

This is not the first time a government agency has attempted to remedy employment discrimination related to Black hairstyles. In 2013, the United States Equal Employment Opportunity Commission (“EEOC”) unsuccessfully brought suit against an Alabama insurance claims company because the insurance company allegedly violated Title VII of the Civil Rights Act by discriminating against a Black applicant because she wore dreadlocks. See EEOC v. Catastrophe Mgmt. Sols., 852 F.3d 1018 (11th Cir. 2016).  In that case, Plaintiff Chastity Jones was offered a position as a customer service representative.  Prior to her start date, Ms. Jones was advised that the company did not permit dreadlocks and that she needed to cut them.  When Ms. Jones refused to cut her hair, her job offer was rescinded.  Although recognizing that dreadlocks were a common hairstyle worn by Black people, the Eleventh Circuit Court of Appeals (covering employers in Alabama, Florida, and Georgia) ultimately concluded that dreadlocks were not an immutable characteristic, and that the EEOC could not state a claim for intentional race discrimination against a company seeking to enforce its “race-neutral” grooming policy.  The United States Supreme Court declined to hear Ms. Jones’ appeal.

Although the NYCHRL only covers employers with four or more employees in New York City, employers nationwide should pay close attention to the Commission’s guidance as it could influence courts and other government agencies throughout the country. Before implementing any grooming policies—including those that could adversely impact individuals in a protected category of employment—Human Resources professionals should consult with qualified legal counsel to adopt lawful policies that do not create a “hairy” situation.

–Lee Tankle

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