Seyfarth Synopsis: New York City recently released guidance that ensures that all New Yorkers, with an emphasis on black people, have a right to wear their “natural hair, treated or untreated hairstyles such as locs, cornrows, braids, Bantu knots, fades, Afros and/or the right to keep their hair in an uncut or untrimmed state” without fear of reprisal. A copy of the guidance can be found here.
Overview of What the Guidance Does and Does Not Represent
The guidance is noteworthy as a road map for how the New York City Commission on Human Rights (the “City Commission”) will, as part of its investigatory and adjudicatory authority, interpret whether an issue involving the hair of an employee or applicant is discriminatory under the New York City Human Rights Law (“NYCHRL”). The guidance is also noteworthy because no other agency, state or federal, or court has seemingly asserted such broad principles of protection for discrimination on the basis of hair.
On the other hand, the guidance is just that: guidance. It is not a statute. Nor is it a regulation developed in accordance with rule-making requirements. Thus, while the City Commission will certainly follow the guidance, a court is free to defer or not to the guidance in whole or in part.
The guidance explains how hair texture and hairstyles are connected deeply to black identity and therefore warrant protection as racial characteristics under the NYCHRL. Although the guidance focuses primarily on race-based discrimination for people who wear particular hairstyles because of their racial/ethnic identity, it notes that protections for hair-based discrimination extend to other areas such as discrimination based on religion, gender, age, and disability.
In connection with “grooming or appearance policies,” the guidance forbids employers in New York City from banning natural hair or other hairstyles commonly associated with black people. The guidance does not purport to invalidate facially neutral grooming or appearance policies that are very common among employers, but the guidance emphasizes how such policies may be discriminatory as applied. And while legitimate health and safety concerns remain legitimate justifications for an employer’s application of grooming or appearance standards, the guidance states that the employer must address any concern before imposing a ban or restriction, such as by requiring the use of hair ties, hair nets, head coverings or safety equipment that can accommodate various hairstyles and textures.
The following are examples the guidance describes as discriminatory:
- A grooming policy prohibiting twists, locs, braids, cornrows, Afros, Bantu knots, or fades which are commonly associated with black people
- A grooming policy requiring employees to alter their hair to conform to the company’s appearance standards, including having to straighten or chemically relax hair
- A grooming policy that bans hair that extends a certain number of inches from the scalp, thereby effectively prohibiting Afros
- Applying facially neutral policies in a discriminatory manner, for example, banning the use of color/dyes, extensions, and/or patterned or shaved hairstyles against black employees only
- Harassing and imposing unfair conditions on employees based on their appearance, such as forcing black people to obtain permission before changing their hairstyles; requiring only black people to alter or cut their hair or risk losing their job; telling a black person that he/she cannot be in a customer-facing role because of his/her hair; refusing to hire a black applicant because his/her hair does not fit a certain “image;” and mandating that black employees hide their hair under a hat or visor; and
- Banning or limiting or otherwise restricting natural hair or hairstyles because they do not fit a certain corporate image because of customer preference or under the guise of a speculative health or safety concern.
Mutability of Hairstyles Irrelevant Under City Guidance, But Not Federal Law
While the guidance asserts that hair-based discrimination claims are gaining momentum across the country, there is no federal law that protects hairstyles and textures. In 2018, the United State Supreme Court declined to review a case brought on behalf of Chastity Jones, a black woman who had a job offer rescinded when she refused to change her locs. The Eleventh Circuit Court of Appeals held that racial discrimination has to be based on immutable characteristics, such as skin color, and that hairstyles do not qualify as immutable because they can be changed. This interpretation differs from the City’s guidance, which directly links black hairstyles to racial/ethnic identity regardless of their mutable nature.
Employers 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. A court might be persuaded that the guidance is unworthy of deference on grounds such as that the NYCHRL does not protect against discrimination based on a mutable characteristic. But this is far from a certainty. Meanwhile the City Commission will certainly follow the guidance and has sweeping powers to investigate and adjudicate possibly through administrative hearings, as well as to impose civil penalties up to $250,000 for violations of the NYCHRL (with no cap on statutory damages) and require employers to amend their policies into compliance. Accordingly, most employers in New York City will want to strive for compliance with the guidance.