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UPDATE: On July 12, 2019, New York State amended its State Human Rights Law to include the following definitions: “The term ‘race’ shall, for the purposes of this article include traits historically associated with race, including but not limited to, hair texture and protective hairstyles”; “The term ‘protective hairstyles’ shall include, but not be limited to, such hairstyles as braids, locks, and twists.” The amendment is codified at section 292 of the New York Executive Law.
The New York City Commission on Human Rights (NYCCHR) released enforcement guidance on Monday, February 18, 2019, defining discrimination based on natural hair and hairstyles as a subset of race discrimination.1 The NYCCHR explained that “[b]ans 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.”2 Therefore, the New York City Human Rights Law “protects the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities” including “locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.” This anti-discrimination guidance on the basis of hair appears to be the first of its kind in the United States. Businesses with employees in New York City should review their grooming policies and dress codes to ensure they do not run afoul of this new guidance.
What Does the Guidance Prohibit?
The guidance advises employers that requirements around “maintaining a work appropriate appearance” are acceptable, but warns that policies “that ban, limit, or otherwise restrict natural hair or hairstyles associated with Black people generally violate the NYCHRL’s anti-discrimination provisions.”
The guidance provides the following examples of unlawful policies:
- A grooming policy specifically prohibiting twists, locs, braids, cornrows, Afros, Bantu knots, or fades which are styles commonly “associated with Black people.”
- A grooming policy 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., through the use of chemicals or heat).
- A grooming policy banning hair that extends a certain number of inches from the scalp, thereby limiting Afros.
Under the City guidance, facially neutral grooming policies may also violate City Law if an employer enforces an ostensibly neutral policy only against Black employees. The City also observes that grooming and appearance policies may give rise to other types of discrimination claims, including religious, disability, age or gender-based claims.3
Moreover, the City guidance warns against conduct that may constitute harassment of employees on the basis of their hairstyle. The guidance provides the following examples of harassing behavior:
- Requiring Black people to obtain supervisory approval prior to changing hairstyles, but not imposing the same requirement on other people.
- Requiring only Black employees to alter or cut their hair or risk losing their jobs.
- Telling a Black employee with locs that they cannot be in a customer-facing role unless they change their hairstyle.
- Refusing to hire a Black applicant with cornrows because her hairstyle does not fit the “image” the employer is trying to project for sales representatives.
- Mandating that Black employees hide their hair or hairstyle with a hat or visor.
Furthermore, the City guidance states that any health and safety concern that an employer may have related to a specific hairstyle should be addressed with a non-discriminatory measure such as a net or hair tie, and alternative safety options to accommodate various hair textures and styles should be offered before asking employees to change their hairstyle.
Across the nation, appearance-based discrimination claims are gaining momentum. The Equal Employment Opportunity Commission (EEOC)’s recent guidance is aligned with the New York City guidance. The EEOC suggests that “hair texture” is a protected trait under race and often argues in litigation that restrictions on hair and hairstyles are a form of discriminatory stereotyping prohibited by the Supreme Court’s decision in Price Waterhouse v. Hopkins. Some federal courts have adopted this idea while others have not.4 The Supreme Court has yet to weigh in on whether hair and hairstyles are protected under federal law.
Employers in New York City should review their grooming standards and appearance policies to ensure they are neutral and, moreover, inclusive of ethnic or cultural practices related to hair and hairstyles.
1 New York City Comm’n on Human Rights, Legal Enforcement Guidance on Race Discrimination on the Basis of Hair (Feb. 2019).
2 The Commission’s Guidance uses the term “Black people” to refer to “those who identify as African, African American, Afro-Caribbean, Afro-Latin-x/a/o or otherwise having African or Black ancestry.”
3 The Commission cites as examples “a Sikh applicant denied employment because of his religiously-maintained uncut hair and turban; an Orthodox Jewish employee ordered to shave his beard and cut his payot (sidelocks or sideburns) to keep his job; a Black salesperson forced to shave his beard despite a medical condition that makes it painful to shave; a 60-year-old employee with gray hair told to color their hair or lose their job; or a male server ordered to cut his ponytail while similar grooming policies are not imposed on female servers.”
4 See, e.g., Millin v. McClier Corp., No. 02 Civ. 6592 (GEL), 2005 WL 351100, at *5 (S.D.N.Y. Feb.14, 2005) (“a reasonable factfinder could construe comments regarding [plaintiff's] dreadlocks as related to his race, religion, and/or national origin [given that] dreadlocks are commonly associated with African-American, Rastafarian, and Jamaican culture”).