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What You Should Know About “Hairassment”

HR Column

Photo: Courtesy of the author

Note from the author: I have always revered all kinds of hair as the crowning glory of its bearer. As an African woman, I have raised my teenage daughters with a deep appreciation of the versatility of their hair, which can adapt to any style and texture under the sun. In 2013 I put my hair into locs and soon thereafter, accepted a position as deputy general counsel of a global manufacturer of highly engineered mechanical seals and systems primarily offered to the oil and gas industry. Going into this Caucasian male-dominated environment, I was nervous about how my hair would be perceived and whether it would detract from my employer’s confidence in my abilities. I have been fortunate in that my hair has never been an issue in the workplace.

This article, however, highlights the challenges many people of color face related to their hair in many arenas. As lawyers, let us be at the forefront of changing organizational cultures with an increased awareness that eliminates bias and hostility on the basis of hair texture and style.

In February 2019, the New York City Commission on Human Rights (Commission) issued new guidelines to “protect the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities.” There is no legal precedent in US federal court on hair discrimination. The Commission acted after several incidents in which African Americans were forced to cut their hair or were refused employment because of their hairstyles.

In an effort to protect all its citizens and capture the versatility of African hair, the Commission spells out the right of people of African descent “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.”

Under its adjudicatory authority, the Commission can assess fines, award damages, and grant injunctive relief such as requiring an employer to reinstate a terminated employee or change its policies. Violators can be fined up to US$250,000 with uncapped damages for terminating, demoting, harassing, threatening, or otherwise punishing employees because of hair texture or style.

The New York Commission guidelines strive to address longstanding bias and discriminatory policies that single people out based on their hair:

Anti-Black racism can be explicit and implicit, individual and structural, and it can manifest through entrenched stereotypes and biases, conscious and unconscious. Anti-Black bias also includes discrimination based on characteristics and cultural practices associated with being Black, including prohibitions on natural hair or hairstyles most closely associated with Black people.

The Commission notes that corporate policies restricting Black hairstyles are skewed in favor of white standards of appearance and promote stereotypical racist notions that Black hairstyles are unprofessional.

Background

If these prohibitions — indeed, this whole subject — stretches credulity, the Commission cites multiple cases where Black employees have been denied employment, terminated, or denied shifts and other opportunities because of their hair. For example, in Pitts v. Wild Adventures, Inc., the court granted summary judgment against an African American woman who was written up and terminated after complaining about a grooming policy prohibiting "dreadlocks, cornrows, beads, and shells" that are not "covered by a hat/visor."

In EEOC v. Catastrophe Management Solutions, the Eleventh Circuit affirmed the dismissal of a case where the employer rescinded a job offer after a candidate refused to cut off her locs (long braids, formerly called dreadlocks). The Commission addressed the impact of these hostile work environments:

Race discrimination based on hair and hairstyles most closely associated with Black people has caused significant physical and psychological harm to those who wish to maintain natural hair or specific hairstyles but are forced to choose between their livelihood or education and their cultural identity and/or hair health.

Prohibited policies

The Commission concludes that because hair is inherent to one’s race, it is protected under the city’s human rights laws, which outlaw discrimination based on race, gender, national origin, religion, and other protected classes. The guidance covers public accommodations (e.g., businesses, schools, and other public spaces) and employers. Covered entities can no longer:

  • Prohibit twists, locs, braids, cornrows, Afros, Bantu knots, or fades, all of which are commonly associated with Black people;
  • Require employees to straighten or relax their hair to conform to company standards;
  • Prohibit afros by requiring employees to trim their hair that grows more than a certain number of inches from the scalp;
  • Promulgate facially neutral grooming policies with a disparate impact, such as only enforcing policies banning color, extensions, patterned, or shaved hairstyles against Black employees;
  • Require Black employees to obtain supervisory approval to change hairstyles where similar requirements are not imposed on other employees;
  • Force Black employees to change hairstyles in order to retain employment;
  • Prevent Black employees with certain hairstyles (e.g., locs) from serving in customer-facing roles unless they change their hair;
  • Decline employment to an applicant with a certain hairstyle (e.g., cornrows) on the basis that the style is inconsistent with the image the employer wants to project;
  • Require Black employees to wear hats or visors to hide their hair;
  • Restrict natural hairstyles based on claims of customer preference, desired corporate image, or health or safety issues; and
  • Impose unfair conditions or otherwise discriminate against employees on the basis of their race-based appearance.

What employers can do

The Commission notes that an employee’s ability to perform the essential functions of a role is not related to hair texture or hairstyle. If an employer has a legitimate concern about health or safety, it must seek alternative methods to address the concern that apply equally across employees of different races.

[Related: 8 Tactics to Roll Back Racial Bias at the Office]

For example, a restaurant concerned about preventing hair from shedding into food can require all employees involved in food preparation to wear hair nets or other effective head coverings. Employers concerned about safety at certain sites should provide safety equipment that can be used by employees with differing hair textures and styles, such as cornrows or braids.

Uncertainty of future adoption

The lack of federal precedent in the United States for the protection against hair discrimination, as well as the apparent absence of similar legislation in countries outside the United States, leaves a general counsel in an uncertain landscape. It’s not clear whether and to what extent other jurisdictions will adopt guidelines similar to those of the New York, even though instances of hair discrimination have been reported across the United States and are not limited to employment situations.

For example, a Florida school made headlines after banning a child for having locs. In New Jersey, a high school cut ties with a referee for requiring a teen to cut his locs to compete in a wrestling match. In Massachusetts, a private school routinely punished Black students for having extensions, unrelaxed hair, and braids while permitting White students to wear extensions and hair color.

Best practices for employers

Employers with a presence in New York City are required to comply with the new prohibitions or risk a fine up to US$250,000. Beyond this particular issue, companies concerned with eliminating racial or unconscious bias in their corporate culture can take the following proactive steps:

  • Understand how hair and grooming policies can perpetuate discrimination;
  • Create an open dialogue and safe environment for employees to report related concerns;
  • Amend diversity and inclusion training to increase employee awareness of potential bias toward coworkers based on hairstyle; and
  • Evaluate the company’s dress and grooming policies with an eye toward eliminating overtly discriminatory policies or those with a disparate impact on a particular group.

Overall, grooming and dress policies should apply equally to all employees to the extent grooming policies are necessary. Such requirements (e.g., covering hair when working with food at restaurants) should be related to the performance of the specific job and not be based on subjective preferences of customers or company leadership. Applying these policies universally will ensure an inclusive work environment.

About the Author

Spiwe L. JeffersonSpiwe L. Jefferson is chief counsel of ChristLight Productions Ltd., patron fellow of the American Bar Foundation, and governance committee chair of the board of The BrandLab. She is a member of the ACC employment and labor, law department management, and litigation networks.


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