Where some courts have interpreted federal law to permit such bans, New York City is one of the first jurisdictions across the country to announce protections and enforcement actions against this type of discrimination.

On February 18, 2019, the New York City Commission on Human Rights released new legal enforcement guidance clarifying that “grooming or appearance policies that ban, limit, or otherwise restrict natural hairstyles or hairstyles associated with Black people[1][2] generally violate the NYCHRL’s [New York City Human Rights Law] anti-discrimination policies.” Where some courts have interpreted federal law to permit such bans, New York City is one of the first jurisdictions across the country to announce protections and enforcement actions against this type of discrimination.

The NYCHRL prohibits race discrimination by employers and providers of housing or public accommodations. According to the Commission, anti-Black discrimination is often based on characteristics and cultural practices associated with being Black. Hair in an uncut or untrimmed state and hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades and Afros are protected racial characteristics as “they are an inherent part of Black identity.” Prohibitions on these hairstyles or natural hair are typically “rooted in white standards of appearance and perpetuate racist stereotypes that Black hairstyles are unprofessional.” The Commission notes that these prohibitions may also cause serious medical harm and/or emotional distress.

In the Workplace

The Commission’s guidance notably affects policies in the workplace. While employers may impose certain grooming and appearance standards, they may not enact policies that require alteration of natural hair, ban Black hairstyles or target Black hairstyles. Policies that appear facially neutral but are discriminatorily applied are also impermissible under the NYCHRL. Moreover, employers may not harass or impose unfair conditions against employees based on aspects of their appearance associated with their race. For example, the following policies or situations would be considered discrimination in violation of the NYCHRL:

• A grooming policy to maintain a “neat and orderly” appearance that prohibits cornrows or locs;
• A grooming policy requiring employees to straighten or relax their hair to conform to the company’s appearance standards;
• A grooming policy limiting hair length, which would consequently limit Afros;
• Requiring Black people to obtain approval to change hairstyles but not requiring other people to do the same;
• Informing Black employees with cornrows that they must change hairstyles to work in customer-facing roles;
• Refusing to hire Black applicants with locs because their hairstyle does not fit the “company image”; and
• Requiring Black employees to hide their hair with an accessory, such as a hat or visor.

If employers have legitimate health or safety concerns with respect to grooming standards, the Commission encourages employers to consider alternative ways to manage those concerns prior to banning or restricting employee hairstyles. This may include using hair ties, hairnets, head coverings or alternative safety equipment that accommodates various hair textures and hairstyles. If employers move forward with a ban or restriction on hairstyles due to health and safety, they should ensure their policies are implemented and enforced equally among all protected classes of employees. A restaurant, for example, generally has legitimate concerns about food contamination from hair. If the restaurant requires that kitchen employees with shoulder-length hair or longer secure their hair using a hair tie, the restaurant should apply and enforce the requirement equally, notwithstanding style of hair, race, gender, gender identity or any other protected class.

In Places of Public Accommodation

Under the NYCHRL, discrimination in areas of public accommodation by anyone who provides goods and services to the general public is prohibited. Public accommodations may include schools, fitness clubs, nightclubs, cultural institutions, stores, banks, hotels, restaurants, medical offices, theaters, hospitals and more. While the guidance focuses on discrimination in schools, it explicitly acknowledges that protections against hair discrimination in places of public accommodation extend to all public accommodations, not just schools. The Commission further explains that “it is no justification to prohibit natural hair or hairstyles because they are perceived to be a distraction or because of speculative health or safety concerns.” Examples of violations include:

• A dance company requiring girls and women to remove their braids or alter their Afro and only wear a “smooth bun” to participate in classes;
• A nightclub turning away a patron because her natural hairstyle does not meet their dress code; and
• A fitness club prohibiting a Black athlete with locs from participating in an athletic competition because his hair is below his shoulders but allows white athletes with long hair to tie their hair up.

What This Means for Employers and Other Covered Entities

Employers and places of public accommodation should tread carefully and evaluate their existing grooming and appearance standards, policies and procedures “to ensure they are inclusive of the racial, ethnic, and cultural identities and practices” associated with not just Black communities, but all other historically marginalized communities as well. Managers, supervisors and other relevant personnel should be trained regarding appropriate standards and procedures. Existing policies and procedures that are facially neutral may still run afoul of the NYCHRL, so employers and other covered entities would be prudent to consult counsel with NYCHRL experience for review of these policies and procedures.

For More Information

If you have any questions about this Alert, please contact Eve I. Klein, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Notes

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.