New York City Issues Guidance on Hairstyle Discrimination
On February 18, 2019, the New York City Commission on Human Rights (the “Commission”) published guidance on race-based hairstyle discrimination under the local New York City Human Rights Law (“NYCHRL”), with a focus on hairstyles associated with African-Americans.
The Commission, which is tasked with preventing discrimination in employment, public accommodations, and housing, stated that white and European beauty standards, which are often reflected in employers’ grooming and appearance policies, do not trump peoples’ rights to wear hairstyles that reflect their racial, ethnic, and cultural identities. The Commission emphasized that “[f]or Black people, this includes the right to maintain natural hair, treated or untreated hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.”
Even if an employer’s appearance standards do not expressly target African-Americans, they may still run afoul of the guidance if they unintentionally (or “disparately”) impact black hair or hairstyles. The Commission identified, among other examples, “[a] grooming policy banning hair that extends a certain number of inches from the scalp, thereby limiting afros.” Policies that specifically target hairstyles, like cornrows, or policies that mandate a “neat and clean” appearance but are interpreted to prohibit certain hairstyles, like dreadlocks, are even more clearly unlawful.
While some news headlines claim that New York City has now “outlawed” or “banned” hairstyle discrimination, the new guidance actually reflects the Commission’s interpretation of existing law under the NYCHRL. However, when agencies, like the Commission, publish interpretations of the laws they are tasked with enforcing, like the NYCHRL, courts are generally required to defer to these interpretations.
The Commission’s guidance is also not without precedent. The United States Equal Employment Opportunity Commission (“EEOC”), which enforces federal antidiscrimination laws, opined in 2011 that hairstyle rules imposed by employers must “respect racial differences in hair textures and [be] applied evenhandedly.” Numerous hairstyle-based race discrimination cases have passed through state and federal courts across the nation, and the Commission cites to many of these decisions in the new guidance.
Ultimately, the impact of this new guidance depends on how the Commission enforces it in practice and whether courts agree with this method and manner of enforcement. In the meantime, employers with questions about the impact of this guidance should contact counsel with experience in matters of employment law.