In February, the New York City Commission on Human Rights, released guidance that defines race discrimination to include discrimination based on natural hair and hairstyles. Under this guidance, the New York City Human Rights Law now protects the rights of New York City (“NYC”) employees to maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities. This includes, but is not limited to, the right to maintain hairstyles such as “locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.”
Examples of policies that violate the NYC law are:
- A grooming policy prohibiting twists, locs, braids, cornrows, Afros, Bantu knots, or fades which are commonly associated with African American 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., use chemicals or heat); and
- A grooming policy banning hair that extends a certain number of inches from the scalp, thereby limiting Afros.
The guidance further provides that facially neutral grooming policies may violate the NYC law if an employer enforces the policy only against a protected class.
The NYC law prohibits employers from harassing, imposing unfair conditions, or otherwise discriminating against employees based on aspects of their appearance associated with their race. Examples of discrimination include:
- Requiring African American people to obtain supervisory approval prior to changing hairstyles, but not imposing the same requirement on other races;
- Requiring only African American employees to alter or cut their hair or risk losing their jobs;
- Telling an African American employee with locs that they cannot be in a customer-facing role unless they change their hairstyle;
- Refusing to hire an African American candidate with cornrows because her hairstyle does not fit the “image” the employer is trying to promote for sales representatives; and
- Mandating that African American employees hide their hair or hairstyle with a hat or visor.
This law is an interesting development in light of a 2016 federal appellate court decision that held that an employer’s ban of dreadlocks was not per se race discrimination. In that case, the Equal Employment Opportunity Commission took the position that it was. The Supreme Court declined to hear the case and federal courts remain split on whether natural hair discrimination is race discrimination. We will update you as this area of the law develops.