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Appearance in Employment

Published:  July 1, 2019

California is on the verge of being the first US state to ban discrimination on the basis of natural hair styles associated with race. Specifically, the new law will amend the state employment discrimination statute to include “traits historically associated with race, including but not limited to, hair texture and protective hairstyles.” Under the amended law, “protective hairstyles” is defined to include, but isn’t limited to, hairstyles such as braids, locks and twists. Although California is set to be the first state to explicitly ban racial discrimination based on natural hairstyle, other states may also soon be addressing this problem. There is also a similar bill that has been introduced in the New Jersey legislature.

These laws are intended to eliminate a problem that disproportionately affects people of color. Many employer dress codes and/or appearance policies prohibit hairstyles that are “unprofessional-looking.” While prohibiting unprofessional appearance is entirely valid, proponents of the bill argue that these vague policies are frequently enforced in a discriminatory manner. The preface to the California bill states that the societal ideal of professionalism is still closely linked to European features and customs, which has the effect of creating the presumption that non-Euro-centric norms and customs are unprofessional.

This concern has also been addressed by other jurisdictions. New York City passed similar protections early this year. According to the guidance issued by the New York City Commission on Human Rights, the New York City Human Rights Law protects the rights of New Yorkers to maintain natural hair or hairstyles closely associated with their racial, ethnicity or cultural identities. Under the New York City law, the protections extend beyond “natural” hair to hair styles commonly associated with racial identity, including hairstyles that involve some form of heat or chemical treatment, such as locs, cornrows, twists, braids, Bantu knots, fades, Afros and/or keeping hair in an uncut or untrimmed state. The New York City Commission on Human Rights also noted that the right to keep hair in an uncut or untrimmed state implicates religious or cultural connections for various religious and ethnic groups, including Native Americans, Sikhs, Muslims, Jews, Nazirites and Rastafarians.

The NYCCHR’s guidance also included a reminder that grooming or appearance policies are unlawful if they generally target communities of color, religious minorities or other communities protected under the New York City Human Rights Law. The NYCCHR listed several examples of religious, disability, age or gender based discrimination with respect to hair, such as: a Sikh applicant being denied employment because of religiously-maintained uncut hair and turban; an Orthodox Jewish employee being ordered to shave his beard and cut his payot (sidelocks or sideburns); a disabled individual ordered to shave his beard despite a medical condition that makes it painful to shave; a 60 year old employee being ordered to color his gray hair; and a male employee being ordered to cut his ponytail while female employees were not forced to do so.

While these protections are not explicit under Massachusetts law, Massachusetts anti-discrimination law may be interpreted to already provide some of these protections. Furthermore, as this issue becomes increasingly visible, other states, such as Massachusetts, may soon pass similar laws explicitly providing the same protections. While Massachusetts law does not yet explicitly provide all of these protections, the California law is a good reminder for employers to reassess their current dress code, grooming and/or appearance policies to ensure that they do not disproportionately hold a negative impact on a specific protected class.

If you have any questions about protected class details or any other employment law issues, please contact the attorneys at Royal, P.C.

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