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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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This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.