New York City Employers Must Be Careful Not To Discriminate Based on Employees’ Hair or Hairstyles
The New York City Commission on Human Rights (the Commission) recently issued new legal enforcement guidance clarifying that the New York City Human Rights Law (NYCHRL) “protects the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities.” Accordingly, any grooming or appearance policies that ban, limit or otherwise restrict employees from maintaining natural hair or hairstyles generally violate the law’s anti-discrimination provisions.
In particular, the Commission notes that bans or restrictions on natural hair (generally understood as the natural texture and/or length of hair that is untreated by chemicals or heat) are often rooted in discriminatory standards of appearance and perpetuate unlawful racial stereotypes that traditionally Black or African-American hairstyles are unprofessional, unhygienic, messy, disruptive or unkempt. The Commission further explains that Black hairstyles are an inherent part of Black identity and, therefore, policies that ban or require the alteration of natural hair or hair styled into twists, braids, cornrows, Afros, Bantu knots, fades and/or locs (even as part of a policy merely requiring a “neat” or “orderly” appearance) may face liability under the NYCHRL for discriminating against or harassing African American employees.
What Hairstyles Commonly Associated With African Americans Are Protected, and What Policies Are Prohibited?
The guidance provides a number of examples of policies that the Commission considers to be violations of the NYCHRL, either because the policies target Black hairstyles directly, or have a tendency to be enforced disproportionately against African Americans or other minority groups:
- Prohibiting twists, locs, braids, cornrows, Afros, Bantu knots, or fades commonly associated with African Americans;
- Requiring employees to alter their hair to conform to an employer’s standards for appearance, including straightening or relaxing hair;
- Prohibiting hair that extends a certain number of inches from the scalp, thereby limiting Afros;
- Banning the use of hair color/dye, extensions, and/or patterned or shaved hairstyles against African American employees only;
- Requiring African American employees, but not others, to obtain supervisory approval before changing hairstyles;
- Requiring African American employees, but not others, to alter or cut their hair or risk losing their jobs;
- Telling African American employees that they cannot be in customer-facing roles unless they change their hairstyle;
- Refusing to hire African American job applicants, or firing African American employees, because their hairstyles do not fit the employer’s “image”;
- Mandating that African American employees, but not others, hide their hair or hairstyle with a hat or visor; and
- Restricting African American natural hair or hairstyles because of customer preferences or speculative health or safety concerns.
The Commission indicates that an employer with a “legitimate health or safety concern” underlying its grooming or appearance policy must “consider alternative ways to meet that concern prior to imposing a ban or restriction on employees’ hairstyles,” such as “the use of hair ties, hair nets, head coverings, as well as alternative safety equipment that can accommodate various hair textures and hairstyles.”
Discrimination Based on Hair Styles Is Not Limited Solely to African Americans
While the main focus of the new guidance is on “restrictions on natural hair or hairstyles associated with Black people,” the Commission makes clear that the NYCHRL’s applicability to discriminatory hair policies is by no means limited to African Americans, and “[g]rooming or appearance policies that generally target communities of color, religious minorities, or other communities protected under the NYCHRL are also unlawful.” This is particularly so with regard to “communities that have a religious or cultural connection with uncut hair, including Native Americans, Sikhs, Muslims, Jews, Nazirites, or Rastafarians.”
The Commission offers some examples of prohibited “religious, disability, age, or gender based discrimination with respect to hair,” such as:
- a Sikh applicant being denied employment because of his religiously-maintained uncut hair and turban;
- an Orthodox Jewish employee being ordered to shave his beard and cut his payot (sidelocks or sideburns) to keep his job;
- an African American being forced to shave his beard despite a medical condition that makes doing so painful; or
- a sixty-year-old employee with gray hair being told to color his hair.
Indeed, the Guidance notes that even a policy “requiring male employees to cut their hair, but allowing female employees to maintain long hair” can violate the NYCHRL, such as if a male server is ordered to cut his ponytail while a similar policy is not imposed on female servers.
While this new guidance offers many examples of what the Commission considers to be NYCHRL-prohibited hair-based discrimination, the full contours of its hair discrimination policies are unclear. Most significantly, the parameters of “legitimate health or safety concerns” justifying hairstyle restrictions are unspecified. In light of the expansiveness of the NYCHRL and its interpretation by the Commission, New York City-based employers should carefully review their policies to determine if changes are needed to comply with the new guidance.
Please do not hesitate to contact any of our attorneys if you have any questions regarding these changes or would like assistance reviewing or updating your policies.