Every few months, social media is set ablaze with reports of an African-American employee, usually a woman, told by her boss to change her hair or face disciplinary action or termination. For example, in January, Brittany Noble, a black female news anchor in Jackson, Mississippi, alleged that she was fired for wearing her natural hair on air. In 2017, a black female Banana Republic employee was disciplined for wearing box braids that her manager stated were “too urban and unkempt” for the store’s image. For years, black women in the U.S. Army were prohibited from wearing their hair in twists or locks until public pressure led to a change in the policy in 2017.
The most common question after one of these incidents circulates is, “Is that legal?” According to recently released guidance from the New York City Commission on Human Rights (NYCCHR), the answer in New York City is “no.”
The guidance, announced on February 18, 2019, states that “grooming or appearance policies that ban, limit, or otherwise restrict natural hairstyles or hairstyles associated with Black people generally violate the NYCHRL’s [New York City Human Rights Law] anti-discrimination policies.” Given the Eleventh Circuit’s decision in Equal Employment Opportunity Commission v. Catastrophe Management Solutions (CMS) finding a company’s refusal to hire a black woman with dreadlocks did not constitute actionable discrimination under Title VII, the NYCHRC’s new guidance puts it far ahead of some federal courts in interpreting discrimination based on hair style to be race discrimination. (You can read Sanford Heisler Sharp's take on the CMS case here.)
The NYCCHR guidance strikes squarely at a concept that the Eleventh Circuit refused to recognize in CMS—the incontrovertible link between African-Americans’ racial identity and their hairstyles. In CMS, the Eleventh Circuit panel firmly adhered to the “immutable characteristic” doctrine in holding that the definition of “race,” in the context of Title VII’s prohibition on race discrimination, “as a matter of language and usage, refer[s] to common physical characteristics shared by a group of people and transmitted by their ancestors over time.” As such, the panel reasoned “discrimination on the basis of black hair texture (an immutable characteristic) is prohibited by Title VII, while adverse action on the basis of black hairstyle (a mutable choice) is not.”
Instead of entering the immutable/mutable characteristic debate, the NYCCHR articulated an expanded view of what constitutes “anti-Black bias” under the NYCHRL to include “discrimination based on characteristics and cultural practices associated with being Black, including prohibitions on natural hair or hairstyles most closely associated with Black people.” The guidance provides the historical and sociological background of Black hair styles to conclude that “black hairstyles are protected racial characteristics under the NYCHRL because they are an inherent part of Black identity.”
New York City employers are not only restricted from enacting policies that ban hairstyles associated with Black people but are also prohibited from “forc[ing] Black employees to straighten, relax, or otherwise manipulate their hair to conform to employer expectations” or to fit a certain corporate image. The guidance also prohibits harassment or the imposition of conditions (such as not being in a customer-facing role) based on hairstyles related to one’s race. While the guidance focuses on anti-Black discrimination, it also recognizes that similar conduct could give rise to other types of discrimination claims, including religious, disability, age or gender-based claims.
Importantly, the Commission recognized that bans on natural hair or hairstyles associated with Black people are often based on racist stereotypes that such hairstyles are not professional and “may be unhygienic, messy, disruptive, or unkempt.” This recognition that racialized stereotyping about hairstyles can be actionable echoes the EEOC’s position in CMS that restrictions on certain hairstyles may be an impermissible use of racial stereotyping in violation of Title VII. The EEOC argued there and has argued in other cases that the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins prohibits discrimination on the basis of stereotypes about the protected class— in CMS, these stereotypes were based on the supposed messiness of dreadlocks, a hair style common to many African-Americans. While the EEOC has taken a firm position in its guidance on hair-based race discrimination, only a few federal district courts have also acknowledged that race discrimination based on one’s hair style or texture can be actionable discrimination under Title VII.
New York City has taken an important step in advancing anti-discrimination law by prohibiting discrimination based on “characteristics and cultural practices” inextricably linked to one racial group, as many hairstyles are to black people. While New York employees are now protected against this type of discrimination, the Supreme Court’s refusal to reconsider the CMS decision leaves many employees across the country vulnerable to race discrimination based on the style of their hair.
With offices nationwide, including locations in New York City, the employment attorneys at Sanford Heisler Sharp are available to help you with your race discrimination lawsuit.