In the growing trend of cultural and racial protections, the topic of hairstyles was recently addressed by the New York City Commission on Human Rights (NYCCHR).
The Commission’s new guidance (NYC Commission on Human Rights Legal Enforcement Guidanceon Race Discrimination on the Basis of Hair) explains that the New York City Human Rights Law (NYCHRL), states, “natural hair or hairstyles closely associated with Black people are often rooted in white standards of appearance and perpetuate racist stereotypes that Black hairstyles are unprofessional.”
Accordingly, employers in New York City are prohibited from having any policies that limit the length, style or color of hairstyles of any specific race or protected class. Singling out a specific race, such as African-American employees that defines the styles or natural states of their hair can be viewed as discriminatory. The NYCHRL “protects the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic or cultural identities.”
While employers can institute policies that limit hairstyles and length for health and safety concerns, they must apply these policies equally to all employees regardless of their race. Any policy that forces any ethic employee to straighten (by way of heat chemicals) or change their grooming style in a way that would conform to the majority race’s cultural norms would create a disparate impact upon those employees. Examples given from the NYCHRL of hairstyles that cannot be restricted are, “twists, locs, braids, cornrows, Afros, Bantu knots, or fades which are commonly associated with Black people.”
The NYCHRL focuses much of its attention on African American employees, but other ethnicities are covered under this guidance as well. The guidance states, “any grooming or appearance policies that generally target communities of color, religious minorities, or other communities,” are prohibited. This protection could potentially extend to hair wraps for such as Muslim and Sikh turbans, hijabs and Jewish yarmulkes.
Age and gender are also addressed in this new guidance. Employers in New York City cannot create a policy that would limit the length of hair of a male employee (or an employee who identifies as male) if the same procedure would not also apply to a female employee (or an employee who identifies as female). Likewise, an employer cannot restrict or require the natural coloring of hair for older employees. In either case, employers would be at risk of recreating a requirement that could potentially discriminate based on gender or age.
As of February 19, 2019, New York City employers should make their policies compliant with this guidance. The commission promoted this new potential law through their social media hashtag, “#YourHairYourRightNYC.” The Commission’s Chair stated, “Hair is part of you. Race discrimination based on hair is illegal in NYC.” While the commission’s guidance has not yet been accepted as a law, employers should still make sure they are compliant with this guidance. Even though this is not a law, the NYCCHR can levy fines and damages to employers who violate the rules laid out in their direction. The commission is already investigating several complaints of possible discriminatory practices hair-related employer policies that have a disparate impact on their African American employees. Investigations into this hair-raising topic will not likely go away anytime soon.
Looking Beyond New York City
Employers outside New York City may not need to make the same adjustments but should be aware of this growing trend and look at their policies and be prepared to make some adjustments as well. Now that this trend is ‘hair,’ it is not likely to go away. It is possible that this guidance from NYCCHR will further braid its way into other American labor laws. One such law is the Title VII Civil Rights act which describes disparate impact as the effect of an employment practice that would cause a substantially negative bearing to hiring, promotion, or other employment condition to members of a minority race, sex, or ethnic group. It is recommended that all employers take another look at their grooming policy and make sure that it is not a blanket policy that might have a discriminatory effect on any of your minority employees. Employers should think twice before they cut an employee’s job short due to a bad hair day.