Last month New York City took action to combat an often-overlooked form of race discrimination involving employee’s hair. In February 2019, the New York City Commission on Human Rights (the “Commission”) published new guidance that explains that employers (as well as housing providers and providers of public accommodations) can no longer institute policies or practices that discriminate against people on the basis of their natural hair texture or their choice to wear a hairstyle commonly associated with African Americans, such as an afro or dreadlocks. According to this new guidance, the Commission views such policies and practices as violative of the New York City Human Rights Law (the “NYCHRL”), announcing that in the Commission’s view, “Black hairstyles are protected racial characteristics under the NYCHRL because they are an inherent part of Black identity.
Discrimination based on hairstyles is an issue that courts across the country have grappled with over the years, with generally employer-friendly results. Courts have been fairly consistent in finding that where a person’s hairstyle is tied to their faith, employers cannot restrict their right to express their faith through their chosen hairstyle. On the other hand, where the person’s hairstyle is tied to their cultural identity and heritage, courts have not been so kind. For the most part, if an employer implemented a race-neutral policy banning hairstyles associated with Black people, courts have not found discrimination. Similarly, race-neutral policies restricting “unkempt” or “messy” hairstyles have generally gained approval from the courts.
For the most part, in order to prevail, a plaintiff had to show that they were specifically targeted in some way, or that the employer’s policy was not applied neutrally. In other words, employees had to demonstrate that the employer’s defense – that the employee failed to comply with a race-neutral employee grooming policy – was pretextual and that the employer’s true motive was discriminatory. Proving pretext can be extremely difficult, which explains why most employers have succeeded when their grooming policies have been challenged as racially discriminatory.
In publishing their guidance on hair discrimination, the Commission has rejected this analysis. Rather than placing a heavy burden on plaintiffs to demonstrate how a neutrally applied grooming policy was racially discriminatory, the Commission puts the burden back on the employer. The Commission asks the preliminary question: why are these policies enacted in the first place? The common justification is that employers have an interest in implementing grooming policies so that their employees look professional and presentable. Based on this justification, employers ban afros, dreadlocks, cornrows and other hairstyles commonly associated with Black people, and further require employees to straighten or relax their hair.
It is no surprise that these policies disproportionately impact African American employees. This is not a coincidence, it is by design, a manifestation of deeply rooted issues of racial discrimination in American society. As the Commission explains in their guidance: “[t]here is a widespread and fundamentally racist belief that Black hairstyles are not suited for formal settings, and may be unhygienic, messy, disruptive, or unkempt.” The concept that a Black hairstyle such as an afro or dreadlocks is “messy” or “unprofessional” is racist on its face. Concepts of what hairstyles are appropriate for the workplace or are “professional” are not objective facts – they are cultural constructs created by our society, against the backdrop of our society’s biases and prejudices. Put another way: Black hairstyles are not considered unprofessional because they are objectively unprofessional, they are considered unprofessional because they have traditionally been worn by Black people. Grooming policies targeting these hairstyles, therefore, are discriminatory on their face.
This guidance does not tell employers that they are never allowed to implement grooming policies regarding employee’s hairstyles. Where an employer has a legitimate, non-speculative health or safety concern, they may be able to impose restrictions on certain hairstyles. However, the employer “must consider alternative ways to meet that concern prior to imposing a ban or restriction” on hairstyles, such as hair nets or alternative safety equipment. The guidance makes clear that it views this exception narrowly, stating “[a]n employee’s hair texture or hairstyle generally has no bearing on their ability to perform the essential functions of a job.”
The Commission’s implementation and enforcement of this guidance will certainly draw legal challenges. This change was not brought about through amendment of the NYCHRL to specifically address hair discrimination, nor by passing a new law altogether to address it. Instead, the Commission stated that they believe the law as it is currently written captures hair discrimination. If this interpretation gains support in the courts, it could produce a ripple effect across the entire country. The NYCHRL uses similar language and structure to Civil Rights statutes at both the federal and state level. Therefore, if courts agree with the Commission’s argument regarding the NYCHRL, similar arguments made regarding similarly written laws would become that much more compelling.
Our employment attorneys are hopeful New Jersey courts embrace the Commission’s common-sense interpretation of the NYCHRL and see what is clear: a grooming policy banning afros or dreadlocks (and all similar policies) are specifically designed to discriminate and harass Black people, because of their race.