August 8, 2019
Generally, employers are free to establish dress codes or grooming policies for their employees, provided they make reasonable accommodations for employees’ disabilities or religious beliefs. Schools have similar rights to create dress codes to prevent disruptions to their educational mission. However, such dress codes or grooming policies may not be racially discriminatory, a definition that now extends to natural hairstyles in California and New York.
On July 3, 2019, California expanded its definition of race-based discrimination to include discrimination based on ethnic hairstyles. New York’s Governor Cuomo signed a similar bill into law shortly thereafter on August 12, 2019. These state laws are the first in the nation to ban race-based hair discrimination, with the goal of preventing employees from being marginalized and discriminated against simply because of their hair. New York City took the lead in this issue in February, 2019, when the NYC Human Rights Commission released legal enforcement guidance on the rights of New Yorkers to maintain natural hair or hairstyles that are “closely associated with their racial, ethnic, or cultural identities.”
NY State’s amendment of the Human Rights Law and Dignity for All Students Act and California’s enactment of the Creating a Respectful and Open Workplace for Natural Hair (CROWN) Act both amend the legal definition of race to include traits historically associated with race, such as hair texture and “protective hairstyles,” such as braids, dreadlocks or twists.
As a result, New York and California employers and schools — K-12 public schools and universities in New York and K-12 public schools in California — are now prohibited from enforcing grooming policies that discriminate based on hairstyles.
Section 1 of California’s law points out “[i]n a society in which hair has historically been one of many determining factors of a person’s race, and whether they were a second class citizen, hair today remains a proxy for race. Therefore, hair discrimination targeting hairstyles associated with race is racial discrimination.”
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The issue of discriminatory practices based on hair gained national attention in late 2018 when a referee of a wrestling match ordered a New Jersey high school student to cut his hair — which he wore in dreadlocks — based on the allegation that his hairstyle was not in compliance with league regulations. The incident sparked a national debate about the perception of African American hair and how it is judged, spurring New Jersey to introduce legislation based on California’s law that would make it the third state to ban hair discrimination.
Race-based hair discrimination is now banned in New York and soon in California, on January 1, 2020. Employers in these states can no longer enforce workplace dress code and grooming policies that prohibit natural hair styles. In addition, they cannot justify firing or passing over a job applicant based on criticism of their hair texture or style, nor can they cite “neatness” or “professionalism” as the premise for doing so. Employers should review and revise their dress and grooming policies, as well as their anti-discrimination and diversity and inclusion policies and training to reflect the new changes. All employees, including hiring managers and others involved in the recruiting, interviewing and hiring process, should understand their responsibilities to refrain from using hair or other physical and/or protected categories as a proxy for race or other discrimination.