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Employers: Beware of the hair (bias). Does your company’s grooming policy invite race discrimination in the workplace?
By Katherine Fechte on August 26, 2019 at 1:45 PM

Blue binder that says "policies" on itCan employers violate employees’ rights by creating policies that prohibit certain hairstyles at work? New York City and California think so; and they likely won’t be the last jurisdictions with a say on the matter.

Just this year the New York City Commission on Human Rights issued guidelines saying that while employers can require that employees maintain a work-appropriate appearance, a grooming policy that prohibits locs, cornrows, fades, Afros, and other such hairstyles will be considered racial bias. Specifically, the guidelines state:

"Employers may not ban, limit, or otherwise restrict natural hair or hairstyles associated with black communities to promote a certain corporate image, because of customer preference or under the guise of speculative health or safety concerns. An employee's hair texture or hairstyle generally has no bearing on their ability to perform the essential functions of a job."

Last month, California became the first state to pass a law banning company policies that discriminate against certain natural hairstyles historically associated with race. The law, titled the CROWN Act (Creating a Respectful and Open World for Natural Hair), classifies workplace bans on natural hair as "enforc[ing] a Eurocentric image of professionalism through purportedly race-neutral grooming policies that disparately impact Black individuals." As a remedy, the Act amends California’s anti-discrimination statute, by defining race and ethnicity to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” Protective hairstyles include but are not limited to hairstyles such as “Afros, braids, locks, and twists.”

While California is the first state to pass a law prohibiting discrimination against natural hair, both New York state and New Jersey have also introduced bills that would extend protection to those who choose to wear natural hairstyles. Even if not operating in one of those three states, employers should review and revise grooming or appearance policies to ensure that they do not ban, limit or otherwise restrict hair texture or hairstyles that have historical associations with race. For example, a uniformly-applied policy requiring only that hair be kept “clean and neat” would not be discriminatory.

If you have questions about the CROWN Act or other pending legislation, or need help revising your company’s grooming or appearance policies, please contact one of the attorneys in our Employment & Labor practice group.

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