On February 18, 2019, the New York City Commission on Human Rights released enforcement guidance about discrimination based on hair. “Hair discrimination” is not per se illegal under either New York State or New York City law. However, this guidance notes that race discrimination, especially anti-black discrimination, takes many explicit and implicit forms. Thus, the New York City Commission’s guidance explains that discriminating against someone because of their hair can constitute employment discrimination.
This appears to be the first legal guidance of this nature in the United States. It focuses on “anti-Black” hair discrimination.
What Is “Hair Discrimination”?
The new guidance proclaims 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.”
The guidance contains more detail, noting “this includes the right 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.”
Source of Legal Protections
The New York City Human Rights Law does not specifically prohibit hair discrimination. It does broadly prohibit race discrimination in employment and other areas.
This guidance from the New York City Commission on Human Rights does not modify the law itself. Instead, it addresses how discrimination based on hairstyle implicates existing protections. In addition to race, the guidance mentions prohibitions against religion, disability, age, and gender-based discrimination. If an employer uses hair as a proxy for any of these protected characteristics, their actions might violate the NYCHRL. But the guidance focuses on race, and specifically Anti-Black, discrimination.
The NYCHRL applies to employers in New York City with at least 4 employees.
The separate New York State Human Rights Law covers employers throughout the entire State. Though similar legal arguments might be available under the State law, this guidance only pertains directly to the NYC law.
Black Hairstyles as Protected Characteristics
Again, the NYC Commission on Human Rights hasn’t actually changed the law itself. An employee who tries to file a complaint based on their hair will still need to check a different box, such as “race,” as the basis of the discrimination. Nonetheless, this enforcement guidance does go so far as to assert that “Black hairstyles are protected racial characteristics under the NYCHRL because they are an inherent part of Black identity.”
The full scope of this newly identified protection remains uncertain. Employers defending against claims based on hair discrimination will likely challenge aspects of the guidance in the future.
According to the guidance: “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.”
Does this mean that employment decisions based on these hairstyles are automatically discriminatory?
Impact on Employee Grooming Policies
There’s little doubt from reading this new guidance that the NYC Commission on Human Rights takes a very broad view on hair discrimination prohibitions. Despite allowing that an employer might have legitimate business reasons for requiring employees to have neatly groomed hair, virtually any restriction that disadvantages anyone with a hairstyle “associated with Black communities” will be legally suspect. To this end, the guidance observes, “an employee’s hair texture or hairstyle generally has no bearing on their ability to perform the essential functions of a job.”
What Does This Mean for New York Employers?
As the New York City Commission on Human Rights concludes in this guidance, employers within NYC should promptly review their grooming and appearance policies. The Commission further encourages employers to “ensure [these policies] are inclusive of the racial, ethnic, and cultural identities and practices associated with Black and historically marginalized communities.”
Outside of New York City, employers throughout the State should still heed this guidance as a warning. The New York State Division of Human Rights has not issued related guidance on this topic. But it may proceed with similar enforcement sentiments. The state employment discrimination laws protect the same underlying characteristics (including race) that the NYC Commission relies on to ban hair discrimination.
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