On February 18, 2019, the NYC Commission on Human Rights issued guidance and announced that the New York City Human Rights Law (“NYCHRL”) will now protect against a new class of discrimination – hair. The NYCHRL generally prohibits discrimination by employers on the basis of age, alienage/citizenship, color, disability, gender, gender identity, marital/partnership status, national origin, pregnancy, race, religion, sexual orientation, status as a veteran, and now, hair. Under the new law, discrimination on the basis of an individual’s natural hair or hairstyle will be considered a subset of race discrimination. New Yorkers will now be protected in maintaining whatever hairstyle they prefer, whether it be twists, braids, cornrows, Afros, Bantu knots, fades, and/or locs.
These new protections under the NYCHRL may, however, pose problems for employers who have certain grooming or appearance policies prohibiting hairstyles related to a particular racial, ethnic, or cultural group. The new law comes in response to such policies, which are often rooted in white and European standards of beauty, and perpetuate racial stereotypes that hairstyles most closely associated with African, African American, Afro-Caribbean, and Afro-Latinx persons are unprofessional. New York City employers will now be forced to confront such stereotypes and recognize black hairstyles, an inherent part of black identity, as a protected racial characteristic.
Examples of practices that will now be considered a violation of NYCHRL’s anti-discrimination provisions include:
- A grooming policy prohibiting twists, locs, braids, cornrows, Afros, Bantu knots, or fades;
- A grooming policy requiring employees to alter the state of their hair, e.g. straightening or relaxing it, to conform to the company’s appearance standards; or
- A grooming policy banning hair beyond a certain length for men, where no such ban exists for women, or banning hair that extends a certain number of inches from the scalp, thereby prohibiting Afros.
Further even facially neutral grooming policies, not necessarily associated with a particular protected class, will be deemed discriminatory if they are applied in manner that reinforces disparate practices associated with racial, cultural, or ethnic identity. For instance, a grooming policy that bans the use of color/dye, extensions, and/or patterned or shaved hairstyles against Black employees only violates the NYCHRL. Moreover, the Commission warns against other employer practices that may amount to harassment on the basis of hair. Such harassing behavior may include:
- Requiring Black employees to obtain supervisory approval prior to changing hairstyles, but not imposing the same requirement on others;
- Requiring only Black employees to alter or cut their hair or risk losing their jobs;
- Telling a Black employee with locs that they cannot be in a customer-facing role unless they change their hairstyle;
- Refusing to hire a Black applicant with cornrows because her hairstyle does not fit the “image” the employer is trying to project for sales representatives; or
- Mandating that Black employees hide their hair or hairstyle with a hat or visor.
If an employer has a legitimate safety or health concern, they should consider alternative ways to address that concern, prior to imposing a ban or restriction on employees’ hairstyles. Such alternatives may include the use of hair ties, hair nets, or head coverings.
The New York City Commission on Human Rights (the “Commission”) will now provide recourse for individuals who are discriminated against, harassed, punished, not hired, or fired because of their hairstyle or length of their hair. The Commission can levy penalties up to $250,000 on employers and entities found to be in violation of the guidelines, and there is no cap on damages.
Hogan Lovells’ employment attorneys have extensive experience crafting neutral and inclusive workplace policies, and are available to help employers take the necessary steps to comply with New York’s anti-discrimination requirements.