Q: I heard New York prohibits employers from discriminating based on hairstyle. What does that mean?
A: In July 2019, New York State passed legislation that amended the definition of race under the New York State Human Rights Law (“NYSHRL”) to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” “Protective hairstyles” include, but are not limited to, braids, locks, and twists. The legislation became effective upon signing.
Although employees previously could allege that employer grooming and dress code policies were discriminatory based on race, the burden was on the employee to show the link between the prohibited hairstyle and race. The legislation eases this burden by making the connection explicit.
The New York state legislation follows the lead of New York City, which released legal enforcement guidance in February 2019 that specifically prohibits workplace grooming policies that may discriminate against Black people, and more generally prohibits workplace grooming policies that target communities of color, religious minorities, or other communities protected under the New York City Human Rights Law. For more details on New York City’s enforcement guidance, please see our previous post.
California recently passed similar legislation, which goes into effect on January 1, 2020. The Creating a Respectful and Open Workplace for Natural Hair Act (“CROWN”) amends the definition of race under the Fair Housing and Employment Act to include “traits historically associated with race, such as hair texture and protective hairstyles,” including “braids, locks, and twists.” CROWN also amends California’s Education Code to prohibit such discrimination in public schools.
To ensure compliance with these laws, employers should review personal appearance and grooming policies to ensure they are facially neutral and are applied in a uniform manner. For example, in a workplace where hair must be tied back for hygienic and/or safety reasons, a policy should simply state that hair longer than a certain length must be tied back, rather than prohibiting or calling out specific styles. As another example, employers must ensure that a policy that requires “professional” hairstyles is not written or enforced in a manner that disproportionately affects people of any particular race.