Is It Time to Update Your Company’s Appearance Policies?

June 27, 2019

On June 13, 2019, bills were introduced in the New Jersey Assembly (A5564) and New Jersey Senate (S3945) that would amend the New Jersey Law Against Discrimination (“LAD”) to include discrimination on the basis of hair. The legislation was supported by the CROWN Coalition, a group of organizations and companies that also supported legislation introduced in New York and California.

The New Jersey legislation, if passed, would amend the LAD to expand the definition of “race” to include “traits historically associated with race, including, but not limited to, hair texture, hair type and protective hairstyles.” A definition of “protective hair styles” would also be added, and would include “such hairstyles as braids, locks, and twists.” Currently, the LAD prohibits a wide range of discriminatory behavior in employment settings, including the refusal to hire due to race and in the terms, conditions or privileges of employment on the basis of race, and the modification would enlarge those prohibitions to include the items above.

Earlier this year, the New York City Commission on Human Rights issued a legal enforcement guidance on hair-based race discrimination based upon the New York City Human Rights Law. The legal enforcement guidance provided the following examples of race discrimination based upon hair:

  • Forcing Black people to obtain supervisory approval prior to changing hairstyles, but not imposing the same requirement on other people.
  • Requiring only Black employees to alter or cut their hair or risk losing their jobs.• Telling a Black employee with locs that they cannot be in a customer-facing role unless they change their hairstyle.
  • Refusing to hire a Black applicant with cornrows because her hairstyle does not fit the “image” the employer is trying to project for sales representatives.
  • Mandating that Black employees hide their hair or hairstyle with a hat or visor.

Although none of the pending legislation has been signed into law yet, companies that have appearance policies may want to prepare for the eventual passage of similar legislation in the locations they operate by amending employee handbooks to give clear guidance on these issues. Please contact Obermayer if you would like our team of experienced employment lawyers to review your employee handbooks and related policies.