[With special thanks to our summer associate Lennox Mark for his contribution to this post.]
From coast to coast, state and local governments are debating and enacting legislation to broaden workplace protections for employee dress and grooming practices. And not surprisingly, employee complaints regarding employer grooming policies — that such policies contribute to discrimination by unduly burdening certain racial characteristics, religious beliefs or health conditions — are on the rise.
In February 2019, the New York City Commission on Human Rights issued a statement of legal enforcement guidance expanding the definition of prohibited race discrimination to include discrimination based on hairstyle. The Commission explained that workplace “grooming or appearance policies that ban, limit, or otherwise restrict natural hairstyles or hairstyles associated with Black people generally violate [local law].” By expressly including hairstyle as a protected characteristic, the Commission effectively created a new legal claim for Black employees who suffer adverse employment actions because their natural hairstyles fail to comport with previously accepted workplace rules.
California hopes to follow New York City’s example. In April, the California Senate unanimously passed the C.R.O.W.N. Act (“Create a Respectful and Open Workplace for Natural Hair”), which expands California’s definition of race to include characteristics associated with race, such as hair texture and hairstyles. Under the revised definition, employers will not be able to indicate a preference for one type of hair, or hairstyle, over another. The law is currently pending in the state Assembly.
The legislative efforts in New York and California reflect the national trend of using grooming standards to address discrimination in places of public accommodation. In Washington, D.C., discrimination based on “personal appearance” is prohibited, and in 2011, the Chicago Commission on Human Relations concluded that a night club that prohibited a hairstyle traditionally associated with one racial group is discriminatory. As recently as 2017, an African American woman whose job offer was rescinded when she refused to change her hairstyle pursued an appeal before the Eleventh Circuit. Though she ultimately did not prevail, litigation over grooming policies proved costly for her employer.
Because of these national trends, employers should proactively scrub their policies to reduce potential exposure to discrimination claims:
- Revise employee handbooks and grooming policies to remove requirements or references to specific hairstyles. In New York, efforts to promote a certain corporate image, appeal to a certain customer base, or even to protect against speculative health and safety concerns are insufficient affirmative defenses for policies that target “braids, Afros, Bantu knots and other hairstyles traditionally associated with a single race or culture.”
- Offer accommodations to would-be violators, even if a grooming policy does not target any specific hairstyle. For example, accommodation may be necessary to exempt African American men from “no facial hair” policies if they suffer from psuedofolliculitis barbae (extreme skin irritation caused by frequent shaving, especially in Black men). Accommodations also may be needed for religious prohibitions on cutting one’s beard or hair, or chemically altering one’s hair.
- Avoid blanket application of workplace rules without considering the impact the rules have employee demographics. Absent a compelling business reason (such as safety), even a neutral rule may prove discriminatory under the broad interpretation given to the new legislation.
For more on managing your workplace policies and practices, contact your Baker McKenzie employment lawyer.