This summer, California and New York became the first states in the country to ban discrimination against African American employees and students over their natural hairstyles, such as cornrows, twists, braids or Afros. Now, New Jersey is next in line.
The rationale behind the legislation, which California state Sen. Holly Mitchell introduced as the CROWN Act (Creating a Respectful and Open World for Natural Hair), is to prohibit unfair grooming practices that have a disparate impact on black individuals in workplaces and schools.
“This legislation informs people about issues that many have never thought about,” says Jeffrey Horton Thomas, partner in the labor and employment practice group at Akerman, a national, full-service law firm. “It’s one thing to write a statute that prohibits discrimination on the grounds of race. It’s an entirely different thing that California and New York have done, which is to say, ‘Race discrimination includes discrimination on grounds of natural hairstyles.’ ”
While Thomas hasn’t seen a large volume of discrimination lawsuits based on this issue, he believes related legal actions could occur in states before they even adopt such laws. He suggests that HR professionals, especially those in progressive states, review their workplace policies, ensuring they’re not outdated or that they don’t bar certain hairstyles associated with African American employees.
Although more conservative states probably won’t be influenced by the actions of California or New York, he says, this legislation has generated a greater awareness of the scope of employee discrimination that will be “infectious, not only with plaintiff lawyers and plaintiffs, but even with some judges.”
Meanwhile, if you support such a policy, can you justify it?
“HR professionals, even in states without legislation now, should exercise caution in allowing supervisors or others to take action based on hairstyles,” Thomas says. “Think twice before your supervisors or managers are telling people they can’t come to work with this or that hairstyle.”
Some workplace policies, however, may be written in stone. Manufacturing plants, for example, can require workers with long hair or braids to wear some sort of head gear to prevent serious injuries, adds Subhash (Suba) Viswanathan, partner at Bond, Schoeneck & King, a labor and employment firm.
“You see the same thing with jewelry,” he says, explaining that some safety policies also prohibit employees from wearing necklaces or rings that can get caught in machinery. “This [legislation] won’t affect employers’ ability to comply with safety rules.”
Even if no other states adopt similar legislation, he says, employees who are discriminated against by such policies can still file claims under Title VII of the Civil Rights Act of 1964. Employees in New York City can also turn to the New York City Human Rights Law (NYCHRL), which recently was amended with guidance that discrimination based on natural hair is a form of racial discrimination.
The NYCHRL states that anti-black bias also includes discrimination based on characteristics and cultural practices associated with being black. More specifically, it points to a grooming policy banning the use of color/dye, extensions, and/or patterned or shaved hairstyles against black employees only. Likewise, an employer can’t use its conservative image as a legal defense to restrict natural hair or hairstyles.
Still, Viswanathan says, HR professionals, regardless of their geography, need to review their dress code and grooming policies to ensure they don’t contain language that could discriminate against a particular racial group.
“Just look at your dress code and grooming policies and think about whether they have any language in them that could potentially have an adverse impact on a particular racial group,” he says. “If [they do], be prepared to defend it based on a safety rule or other legitimate reason that would justify having that code or rule.”
As workplace policies continue to evolve, the next frontier may focus on cultural mannerisms associated with people of specific ethnic groups, adds Shannon Farmer, partner at Ballard Spahr, a national, full-service law firm.
“They’re not seen as professionals, not managerial material, because they may be too loud or talk with their hands,” Farmer says. “If the way you view the conduct of people is different because of cultural characteristics, you might be less likely to promote them.”
Also consider policies that use abstract language. For example, “Employees must have a neat or professional appearance.” At best, such policies are ambiguous and invite interpretation. In worst-case scenarios, they may lead managers to make decisions based on cultural bias.
When in doubt, she says, HR professionals can ask two key questions: Are the policies or standards even-handed? How would they sound if you had to defend them in court?
“So much of this is education,” says Farmer. “What this really points to is the importance of working with your managers and supervisors to make sure they’re making decisions only based on legitimate factors.”