On the Basis of Hair: What Employers Should Know Now About Hairstyle Discrimination
By Bill Pokorny and Erin Walsh - Franczek P.C.
March 4, 2019
Employers across the country are on watch after a recent flurry of news about hairstyle discrimination. Earlier this year, a black news anchor in Jackson, Mississippi, alleged she was fired after wearing “unprofessional” natural hair. Then, in February, the New York Human Rights Commission issued guidance—the first of its kind—prohibiting workplace grooming and appearance policies that limit “natural” hairstyles such as “cornrows” and “Afros.” The guidance focuses on race discrimination, but also recognizes that such policies can lead to discrimination based on religion, disability, age, and gender. What should employers outside of New York know about the current laws with respect to hairstyle discrimination?
• Not so far. New York enacted a law to explicitly prohibit rules and policies that limit “natural” hairstyles because current federal and state laws are not widely interpreted as doing so. Although a prohibition against an employee or student wearing a truly natural hairstyle, such as an Afro, might run afoul of the law, courts have tended to say that styles such as braids and knots are changeable and so are not a part of a person’s race.
• Consider Disparate Impact. Even facially neutral rules can also have what is called a “disparate impact” on a group, meaning that even the rule is written and applied in an equal way, it nonetheless impacts one group more than another. A requirement that hair be worn straight, for example, might disparately impact employees from groups whose hair is typically naturally more textured. Similarly, a rule that hairstyles not be “political” could impact black individuals more because few hairstyles typically worn by non-black individuals have been identified as political.
• Regularly Review Policies and Procedures. The uptick in media attention on this issue is a reminder to employers to regularly consider whether their policies reflect current law and best practices. Policies obviously should not include any facially discriminatory language, like applying requirements to only people of a certain race or sex. But less obvious concerns can also exist. Vague language, like requirements that hair be “neat” or “well-kept,” may increase the risk of unequal application by individual managers or supervisors. Employers should consider using concrete language that clearly describes any requirements related to hairstyles. To avoid disparate impact claims, employers should also be prepared to explain the business necessity for any limitations, especially for rules that prohibit hairstyles typically associated with certain racial or ethnic groups (like dreadlocks), or other rules that apply to “hair texture.”
• Apply Rules Fairly and Equally. Even if you have well-written and clear policies and procedures, legal problems can arise if management applies the rules to only members of a certain race or other protected group. Management needs to be trained on how to properly apply policies and held accountable for doing so in an unbiased way. Training should be interactive and interesting. Employees often zone out during boring video trainings. Training should also involve some knowledge check to confirm understanding.
• Remember Religion. In Illinois, state law prohibits any requirement that would cause an employee to “violate or forgo a sincerely held practice of his or her religion including, but not limited to, the wearing of any attire, clothing, or facial hair in accordance with the requirements of his or her religion.” 775 ILCS 5/2-102. Exceptions to this prohibition are available to maintain workplace safety or food sanitation or if the attire, clothing or facial hair would otherwise cause an undue hardship to the employer’s business.
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