New York employers must again review their appearance policies to ensure they comply with the latest amendments to the New York State Human Rights Law (NYSHRL). New York Governor Andrew Cuomo recently signed a bill into law that amends the NYSHRL to expressly prohibit employment discrimination based on attire, clothing, or facial hair worn as a form of religious observance.
The new anti-discrimination law comes on the heels of New York’s new ban on hairstyle discrimination. In July, New York enacted another new law (S.6209A/A.7797A) that amends the NYSHRL and the state’s Dignity for All Students Act to specify that discrimination based on race includes hairstyles or traits associated with race.
As detailed more fully in a separate article, 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.
Religious Discrimination Based on Appearance
New York’s new religious discrimination law (S.04037/A.4204) expressly prohibits employment discrimination based on religious attire, clothing or facial hair. In a press statement, Gov. Cuomo emphasized that “[t]his law will protect people from discriminatory employment practices based on religious attire or facial hair and makes it crystal clear to anyone who may still have doubts that New York has zero tolerance for bigotry of any kind.”
As amended, the NYSHRL now provides:
It shall be an unlawful discriminatory practice for any employer, or an employee or agent thereof, to impose upon a person as a condition of obtaining or retaining employment, including opportunities for promotion, advancement or transfers, any terms or conditions that would require such person to violate or forego a sincerely held practice of his or her religion, including but not limited to the observance of any particular day or days or any portion thereof as a sabbath or other holy day in accordance with the requirements of his or her religion or the wearing of any attire, clothing, or facial hair in accordance with the requirements of his or her religion, unless, after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee's or prospective employee's sincerely held religious observance or practice without undue hardship on the conduct of the employer's business.
Accordingly, employers can’t refuse to hire, attain, promote, or take other discriminatory action against an individual for wearing attire or facial hair in accordance with the tenets of their religion unless the employer demonstrates that it is unable to reasonably accommodate the employee's religious practice without undue hardship. The law does not define the terms “attire,” “clothing,” or “facial hair,” or provide examples. However, it is worthwhile to note that the amendment was prompted by a complaint by an employee who was required by his employer to remove his turban or affix a company logo to it.
Next Steps for New York Employers
The new law took effect on October 8, 2019. Employers should be aware that current law already prohibits employers from discriminating against employees based on their religious beliefs. In addition, employers must accommodate an employee’s “sincerely held” religious practices, unless doing so would pose an “undue hardship on the conduct of the employer’s business.” Nonetheless, the new law highlights that appearance policies and dress codes may unintentionally discriminate against those who hold sincere religious beliefs related to garb, attire, and hair. Accordingly, it is advisable to review your policies and procedures to make sure they comply and that your staff understands how to address requests for accommodation.
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If you have any questions or if you would like to discuss the matter further, we encourage you to contact us at 201-806-3364 or visit Scarinci Hollenbeck's Attorneys page to learn more about our attorneys and their legal experience.