Do Your Grooming Policies Violate the New Hair Bias Bans?

Do Your Grooming Policies Violate the New Hair Bias Bans?

New York recently became the second state in the US to ban racial discrimination based on hairstyles. Do your business's grooming policies violate these bans?

New York recently became the second state in the country to ban racial discrimination based on hairstyles. California passed a similar law, known as the Crown Act, in July. Given that other states, including New Jersey, are exploring their own legislation, employers in all states should review their grooming or appearance policies for provisions that limit or otherwise restrict natural hair or hairstyles.

The push to extend anti-discrimination protections to hairstyles can be traced back to New Jersey. In 2018, Andrew Johnson, a high school wrestler from Buena Regional High School, was forced to cut his dreadlocks immediately prior to his scheduled competition. The official gave Johnson 90 seconds to either cut his hair off or forfeit the match. In the wake of the incident, state legislatures have moved to curtail such forms of indirect racial discrimination.

New York’s Ban on Hairstyle Discrimination

New York’s new law (S.6209A/A.7797A) amends the state’s Human Rights Law and Dignity for All Students Act to specify that discrimination based on race includes hairstyles or traits associated with race. Both laws now include subsections that define race to include "traits historically associated with race, including but not limited to hair texture and protective hairstyles." The new law defines "protective hairstyles" to include, but not be limited to, such hairstyles as braids, locks, and twists.

Gov. Andrew Cuomo signed S.6209A/A.7797A into law on July 12, 2019. The provisions took effect immediately. "For much of our nation's history, people of color - particularly women - have been marginalized and discriminated against simply because of their hairstyle or texture," Governor Cuomo said. "By signing this bill into law, we are taking an important step toward correcting that history and ensuring people of color are protected from all forms of discrimination."

New Jersey Proposed Hair Bias Legislation

In New Jersey, legislation has been introduced that prohibits discrimination on the basis of hair in the workplace, housing, and schools under the state’s Law Against Discrimination (LAD). The provisions are largely modeled after California’s Crown Act and New York’s new law.

The bill (A-5564/S-3945) specifically amends the LAD so that the term “race” includes “traits historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles.”  Under the bill,  the term “protective hairstyles” includes, but is not limited to, hairstyles such as braids, locks, and twists.

“It is a violation of their civil rights to tell you how long your hair should … it has nothing to do with how you perform in the workplace or on a wrestling mat,” said co-sponsor Senator Shirley Turner. The Senate and Assembly Labor Committees are currently considering the legislation.

Next Steps for Employers

In light of the New York and California laws (and the prospect of new regulations on the horizon), employers should review their dress, grooming and/or appearance policies to verify that hairstyles, such as afros or dreadlocks, are not prohibited. At the same time, employers should also ensure that seemingly “neutral” policies, such as those that require workers to maintain a “neat and professional appearance,” are not enforced in a way that could be construed as racial discrimination. While claims of discrimination based on hairstyles are relatively rare, the increased regulatory attention on potential hair bias is likely to fuel an uptick in litigation.

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