Living Just as Free as Their Hair... Under Your Workplace Grooming Policy
In the eight years since Lady Gaga first sang that she lives
“just as free as her hair,” workplace race discrimination issues related to hair
grooming policies have become more prominent.
Freedom in hair, or the “right … to maintain … natural hair
or hairstyles that are closely associated with … racial, ethnic or cultural
identities,” was recently bolstered by the New York City Commission on Human
Rights’ issuance of new guidance related to race discrimination on the basis of
hair under the New York City Human Rights Law (“NYCHRL”).
Last week, the NYC Commission on Human Rights issued
guidance that any “grooming or appearance policies that ban, limit, or
otherwise restrict natural hair or hairstyles associated with Black people” violate
the anti-discrimination provisions of the NYCHRL.
Most employers in New York City with more than four
employees are subject to the NYCHRL, and the NYC Commission on Human Rights has
the power to (among other things) issue cease and desist orders to enforce the
law, order an employer to rehire an employee, impose civil penalties of up to
$250,000, and award back and front pay to damaged employees.
Employers outside of New York City should take equal note of
the legal precedence —
and resulting cultural impact —
created by the Gotham City. “Grooming” or “Appearance” policies that proscribe
certain hairstyles can violate not only state and local laws on discrimination,
but also Title VII of the Civil Rights Act.
For years, the federal Equal Employment Opportunity
Commission’s “Compliance Manual” has put employers on notice that policies on
hair must be neutral and may not be more prohibitive of hairstyles often
maintained by black people, such as Afros. Otherwise, such policies may violate
Title VII of the Civil Rights Act.
The EEOC has recently gone to some lengths to enforce this
part of its Manual, resulting in five years of litigation for one Alabama
employer. In 2013, the EEOC filed suit against the employer for allegedly
rescinding a job offer after a black applicant refused to cut off their
dreadlocks pursuant to a grooming policy prohibiting the hairstyle. The EEOC appealed
the case for more than four years, whereupon, in 2018, the NAACP Legal Defense
and Education Fund took up the case and attempted, albeit unsuccessfully, to
take it to the Supreme Court of the United States.
Of course, in this social media era, the pen/tweet/snap/insta/post
is gaining in might alongside the legal “sword.” Avoiding violations of the law
via policies regarding hair and hairstyle is important, but avoiding public
outrage regarding perceived discrimination is perhaps becoming equally so.
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