Under new guidelines just released last week by the New York City Commission on Human Rights, the targeting of people based on their hair or hairstyle, at work, school or in public spaces, will now be considered race discrimination.
The New York City Human Rights Law Amendment
The New York City Human Rights Law (“NYCHRL”) will now protect the rights of people in NYC to maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities. While the law applies to everyone in NYC, the purpose of the law is to remedy disparate treatment of Black people.
The guidelines state 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.” The guidelines go on to reference the very origin of the word “dreadlocks” – early white slave traders initially described African hair and locs as “dreadful,” eventually morphing into the commonly used term we hear today.
The new law applies to anyone in New York City but appears to be aimed at remedying the disparate treatment of Black people. According to the guidance:
[w]hile a range of hair textures are common among people of African descent, natural hair texture that is tightly-coiled or tightly-curled as well as hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades, and Afros are those most closely associated with Black people.
The guidance goes on to say the decision to wear one’s hair in a particular style is highly personal, and Black children and adults have routinely been targeted by discriminatory hair policies while at school and work.
Disparate Treatment – the Old Argument
The NYCHRL has long prohibited racial discrimination in employment. While Black New Yorkers could long have argued disparate treatment based on their hairstyles (which are closely linked to their race), the change in the law further solidifies their right to be free from race discrimination.
Disparate treatment occurs when an employer treats an individual less favorably than others because of a protected characteristic. Treating an individual unfairly when compared to others because of their actual or perceived race is a form of prohibited discrimination. To establish disparate treatment under the NYCHRL, individuals must show they were treated less well or subjected to an adverse action, motivated, at least in part, by their membership in a protected class – here, by being Black. The argument goes that if you take issue with someone’s dreadlocks and they are Black, you are taking issue with their race. Now, there is no need to make the connection between hair and race, as Black hairstyles are now explicitly protected racial characteristics under the NYCHRL as an inherent part of Black identity.
What This Means for NYC Employers
New York City employers with grooming or appearance policies controlling hair may face liability under the NYCHRL for disparate treatment of Black people.
While employers may impose requirements around maintaining a work appropriate appearance, they cannot enforce such policies in a discriminatory manner, target specific hair textures or hairstyles, or otherwise control attributes of an employee’s hair without a specific legitimate business justification. For example, a grooming policy that requires employees to maintain “neat and orderly” hair would likely not violate the NYCHRL. Although – the definition of “neat” may be the bone of contention. However, when that same policy goes on to ban Afros, cornrows, braids, dreadlocks, etc., the policy becomes unlawful as it directly targets hairstyles commonly associated with Black people. Likewise, a grooming policy banning hair that extends a certain number of inches from the scalp, thereby limiting Afros, would likely be unlawful.
Employers in New York City should review their workplace policies and procedures to ensure their grooming policies do not violate the NYCHRL and take the time to train their employees and supervisors on the change in the law. Before you put a workplace grooming policy into effect, think about how it would affect people of different races. If the outcome is different based upon race, you should probably think again.
Brody and Associates regularly provides counsel on civil rights issues and employment laws in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
