Most employers maintain dress codes and grooming policies. And most of these policies dictate that employees must wear “professional” or “business-appropriate” hairstyles. Some go a step further, prohibiting “extreme” or “distracting” coiffures. Such policies, so long as enforced in an even-handed way, have not traditionally been viewed as presenting significant legal risk. But over the past several years, public awareness about hair discrimination—particularly discrimination against hair more common among black employees—has grown. Now, state and local jurisdictions are acting to make hair discrimination illegal, despite adverse court precedent. Here’s what employers need to know about this cutting-edge issue:
What is hair discrimination?
In recent guidance discussed further below, the New York City Commission on Human Rights described the issue of discrimination based on hair texture as follows:
There is a widespread and fundamentally racist belief that Black hairstyles are not suited for formal settings, and may be unhygienic, messy, disruptive, or unkempt. … Black hairstyles are protected racial characteristics … because they are an inherent part of Black identity. There is a strong, commonly-known racial association between Black people and hair styled into twists, braids, cornrows, Afros, Bantu knots, fades, and/or locs, and employers are assumed to know of this association.
In other words, hair discrimination is a theory of discrimination under which a plaintiff asserts unlawful disparate treatment or disparate impact based on an employer’s prohibition on wearing a natural hair texture or hairstyle when such hair texture or hair style is closely associated with the plaintiff’s race or ethnicity.
Courts have not been receptive to hair discrimination claims.
Despite growing public awareness of the phenomenon of hair discrimination, courts generally have been reluctant to interpret Title VII’s prohibition on race discrimination expansively enough to outlaw hair discrimination, even when the hairstyle in issue is one commonly associated with race.
The Eleventh Circuit’s 2016 decision in EEOC v. Catastrophe Management Solutions illustrates the difficulties plaintiffs have faced in asserting hair discrimination claims. The relevant facts are straightforward: Chastity Jones, a black woman with dreadlocks, applied for and was offered a job as a customer service representative in a call center. After the offer was extended, the employer told Jones that it would not hire her with dreadlocks based on its policy requiring employees to be dressed and groomed in “a professional and businesslike image.” When Jones asked why dreadlocks were prohibited, the employer’s white HR manager responded that: “they tend to get messy, although I’m not saying yours are, but you know what I’m talking about.” The EEOC sued on behalf of Jones, alleging that she had been subjected to unlawful disparate treatment on the basis of race in violation of Title VII. The district court granted the employer’s motion to dismiss for failure to state a claim, and the Eleventh Circuit affirmed.
The core of both the district and appellate courts’ holdings was rejection of the EEOC’s attempt to frame race as a “social construct” with “no biological definition,” expansive enough to encompass “cultural characteristics related to race or ethnicity.” In other words, neither court was persuaded that wearing dreadlocks is tantamount to race even though dreadlocks are a manner of wearing the hair that is “physiologically and culturally associated with people of African descent.” Instead, the district court and the Eleventh Circuit agreed that “race” as the term is used in Title VII is confined to immutable characteristics—i.e., characteristics that are a matter of birth, not culture. Almost all courts that have squarely addressed this issue have reached the same conclusion as the Eleventh Circuit.
Faced with adverse court precedent, state and local governments have acted and may continue to act to prohibit hair discrimination.
In February 2019, New York City made headlines when it issued guidance discussing expressly how discrimination based on an employee’s hairstyle could violate the City’s anti-discrimination ordinance (the New York City Human Rights Law or “NYCHRL”):
[E]mployers may not enact discriminatory policies that force Black employees to straighten, relax, or otherwise manipulate their hair to conform to employer expectations. The existence of such policies constitutes direct evidence of disparate treatment based on race/or relevant protected classes under the NYCHRL. Notably, employers that enact these types of grooming or appearance policies do not typically target hair characteristics associated with individuals with white, European ancestry.
The guidance also provides examples of unlawful hair discrimination, including prohibiting twists, braids, cornrows, Afros, Bantu knots, or fades in the workplace; requiring employees to alter the state of their hair (e.g., relax or straighten) to conform to the employer’s appearance standards; and banning hair that extends a certain number of inches from the scalp (which limits Afros).
Last week, the California Senate voted 37-0 to approve the Create a Respectful and Open Workplace for Natural Hair (“CROWN”) Act, which would update California’s anti-discrimination laws such that the definition of race would “also include traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” In public comment on the bill, its primary sponsor, Los Angeles Democrat Holly Mitchell, said “[T]here are still far too many cases of black employees and applicants denied employment or promotion—even terminated—because of the way they choose to wear their hair. I have heard far too many reports of black children humiliated and sent home from school because their natural hair was deemed unruly or a distraction to others.”
The bottom line for employers
To date, courts have been reluctant to expand the meaning of “race” under Title VII to include characteristics closely associated with race, such as hair texture and style. As the natural hair movement continues to gain public support and traction, though, courts may face increased pressure to give closer consideration to this theory of discrimination. And if plaintiffs are unable to find protection against hair discrimination under Title VII, it appears likely that at least some states and localities will fill the void by enacting new or amending existing anti-discrimination laws and rules. Employers should continue to monitor this developing area of discrimination law, and in the meantime, review dress codes and grooming policies to determine whether such policies, or the way such policies are enforced, could be challenged as race discrimination.