Seyfarth Synopsis: The New Jersey Division on Civil Rights recently released guidance clarifying that existing anti-discrimination laws prohibit employers from taking adverse employment actions or applying a grooming policy against an employee or applicant because of the employee’s natural hair growth and texture. This announcement is part of a growing trend that follows similar efforts earlier this year in New York and California.

On September 18, 2019, the New Jersey Division on Civil Rights (“DCR”) issued official guidance which clarifies that the DCR interprets the New Jersey Law Against Discrimination’s (“LAD”) existing ban of race-based discrimination to include discrimination based on hairstyles, particularly as it applies to hairstyles closely associated with Black people. The DCR observed that Black people have historically suffered discrimination in the employment context and otherwise based on hairstyles that are inextricably linked or associated with being Black, in that the hair of many Black people when grown out naturally forms or can be formed into a variety of hairstyles including “locs, cornrows, twists, braids, Afros, fades, and Bantu knots, all of which are closely associated with Black people.”

DCR’s Interpretation of the LAD

The DCR announced its understanding that the LAD prohibits employers, as a general matter, from enforcing “grooming or appearance policies that ban, limit, or restrict hair styled into twists, braids, cornrows, Afros, locs, Bantu knots, fades, or other hairstyles closely associated with Black racial, cultural, and ethnic identity.” In so doing, the DCR outlined three broad areas it believes violates the LAD. First, the guidance notes that “[a]ny policy specifically singling out such a hairstyle will generally constitute direct evidence of disparate treatment under the LAD and unlawful discrimination on the basis of race.”

Second, the DCR stated that even if a grooming policy is facially neutral in that it requires employees to maintain a “professional” or “tidy” appearance, the policy will violate the LAD if it is applied disproportionately against Black people, “such as if Black people with shoulder-length locs or braids are told that they cannot maintain their hairstyle because it is not ‘tidy,’ whereas white people with shoulder-length hair are not told to change their hair.”

Third, a company cannot enforce an appearance policy that practically discriminates against employees with hairstyles closely associated with Black people by claiming that it seeks to project a “corporate image” or to satisfy customers’ preferences. Such justifications will not be sufficient to overcome an inference of discriminatory intent. Moreover, any health or safety concerns an employer raises in defense of such a policy must be “rooted in objective, factual evidence—not generalized assumptions—that the hairstyle in question would actually present a materially enhanced risk of harm to the wearer or to others.”

The guidance concludes by providing the following examples of a potential LAD violation: “An employer denying a promotion or bonus to, failing to address harassment or a hostile work environment against, imposing unfair work conditions on, or otherwise adversely disadvantaging an employee for wearing locs.”

Changes Sweeping the Nation

As the guidance notes, and as we have discussed in previous client alerts, the DCR’s interpretation of existing race-discrimination bans to include enforcing appearance policies against those with hairstyles closely associated with Black people follows a growing trend at the state and local level to protect hairstyles associated with specific races or religions. In July 2019, California and New York State both amended their respective anti-discrimination laws to clarify that the term “race” includes “hair texture and protective hairstyles,” including “braids, locks, and twists,” such that the existing prohibitions on racial discrimination also prohibit discrimination against Black people because of hairstyles closely associated with being Black. Additionally, in February 2019, New York City issued guidance similar to that of the DCR clarifying that New York City’s existing race discrimination laws include hairstyle-based discrimination. Finally, New York State amended its anti-discrimination laws in August 2019 to explicitly prohibit any discriminatory act based upon “the wearing of any attire, clothing, or facial hair in accordance with the requirements of his or her religion . . . .”

Employer Takeaways

Employers should recognize, however, that the DCR’s guidance is not a legislative amendment to the LAD; rather, it reflects this administrative body’s interpretation of the existing version of the LAD. As such, while the DCR will certainly follow the guidance in carrying out its investigatory and adjudicative responsibilities, courts are free to decide whether to defer to the guidance’s interpretation of the law. Nevertheless, we continue to recommend that all employers with New Jersey operations, as well as those with operations in California, New York State, and/or New York City, should not only ensure that their grooming or appearance policies are facially neutral, but also consider whether the application of these policies or other actions related to the hair of an applicant or employee might be deemed discriminatory in a specific instance.