Almost Cut My Hair

In 2018, New Jersey high school varsity wrestler Andrew Johnson was forced to have his dreadlocks sheared by referee, Alan Maloney, or forfeit his match. According to published reports, Maloney advised Johnson that his dreadlocks were not compliant with regulation and he would either have to instantly cut his dreadlocks or forfeit the match. Johnson chose to have his dreadlocks shorn by a trainer and eventually won the match during sudden death. While Maloney subsequently filed a claim for discrimination and defamation against various individuals and entities, others questioned whether the decision resulted from a racial bias against those individuals, in particular black athletes, who wear their hair in natural styles. The New Jersey incident, in combination with others, raised the profile of individuals, primarily black, who wore natural, chemical-free hairstyles and the resulting responses from school districts and employers. In response, California and New York amended their discrimination laws to include hairstyles, with New Jersey similarly introducing legislation regarding hairstyles.

California Leads the Way in Expanding Workplace Rights

On July 3, 2019, California enacted SB188, the “Creating a Respectful and Open Workplace for Natural Hair (CROWN) Act,” thus becoming the first state to ban discrimination in the workplace on the basis of hairstyles associated with race. The inclusion of “hairstyles that are closely associated with race” expands the definition of “race” under the Fair Employment and Housing Act (FEHA). FEHA now defines “race” to include those “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles…[such as] braids, locks, and twists.” CROWN further states that discrimination based on the perception of having hairstyles associated with a particular race is consistent with the theory of disparate impact, “…continuing to enforce a Eurocentric image of professionalism through purportedly race-neutral grooming policies that disparately impact Black individuals and exclude them from some workplaces is in direct opposition to equity and opportunity for all.” While CROWN prohibits discrimination based on hairstyles associated with a particular race, CROWN continues to affirm that the FEHA exceptions for bona fide occupational qualifications, i.e. health and safety, continue to apply.

New York Follows California’s Lead

Following California’s lead, on July 12, 2019, the State of New York adopted AB 07797, becoming the second state to enact legislation prohibiting racial discrimination “…based on natural hair or hairstyles … to include traits historically associated with race, including but not limited to, hair texture and protective hairstyles [including] such hairstyles as braids, locks, and twists.” The bill amends the Dignity for All Students Act, as well as the New York Human Rights Law, to further establish that race-based discrimination does include “historically associated traits.” Prior to New York State adopting its own version of the CROWN Act, in February 2019, the New York City Commission on Human Rights released new guidelines that classify attempts to discriminate people based on their hair. Under the law, New Yorkers retained the right to “maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities.” The effect of the law prohibited employers from instituting policies prohibiting employees from wearing their hair in “natural hair treated or untreated hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades, Afros, and or the right to keep hair in an uncut or untrimmed state…most commonly associated with Black people.” Further, the law prohibited employers from asking their employees from requiring or requesting their employees to chemically relax, straighten or otherwise impose regulations that create “unfair conditions, or otherwise discriminating against employees based on aspects of their appearance associated with their race.” Like California’s FEHA, the NYC Commission on Human Rights cited the disparate impact of such grooming policies and required a bona fide occupational qualification. Specifically, the NYC Commission on Human Rights found that employers requiring a “neat and orderly” appearance within their grooming policy would run afoul of the law, as the policy presumes that “these hairstyles, which are commonly associated with Black people, are inherently ‘messy’ or ‘disorderly.” Finally, per the NYC Commission on Human Rights, individuals who violate the guidelines can face penalties up to $250,000 with “no cap on damages.”

A Nationwide Trend Emerges

The state where the hair discrimination discussion appears to have originated now seems poised to pass its own law. A bill introduced in the New Jersey Senate and Assembly, (A5564/S3945) would amend the state’s Law Against Discrimination to expand the definition of “race” to include hairstyles by including “traits historically associated with race, including but not limited to, hair texture, hair type, and protective hairstyles” which includes “braids, locks, twists, and Afros.” Not surprisingly, the bill specifically cites California’s FEHA by making the term “’race’ inclusive of hair texture and protective hair styles historically associated with race.” The bill would need to be passed by the full Senate and Assembly and signed by the Governor prior to becoming law.

Now Michigan is considering the inclusion of hair styles within their respective anti-discrimination laws within HB 4811, which would amend the Elliott-Larsen Civil Rights Act, with other states sure to follow suit.

Conclusion

The question of whether certain hairstyles constitutes race discrimination will likely arise in future proceedings. In fact, while the EEOC held a position that “hair texture” is a protected trait, the Court of Appeals for the Eleventh Circuit decided that an employee who was required to cut her dreadlocks pursuant to an employer’s race-neutral grooming policy requiring a “professional and businesslike image” was not an immutable characteristic of “race” as defined within Title VII of the 1964 Civil Rights Act, 42 U.S.C. 2000e-2(a)(1) and 2000e-2(m). See, EEOC v. Catastrophe Mgmt. Sols. 876 F.3d 1273 (11th Cir. 2017)

Regardless, employers operating in California, New Jersey, and New York should review their dress codes, grooming policies, and general hiring and retention hiring practices. In light of the exemption provided for “bona fide occupational qualifications,” employers should also review their written job descriptions to ensure that the essential duties and responsibilities of each position do not run afoul of any grooming requirements. Further, the inclusion of hair discrimination within a protected category should encourage employers to review their anti-harassment and anti-discrimination training.

If you have any questions about this or any other compliance issue, please contact Robert A. Orozco. Robert is Counsel with Leech Tishman and a member of the firm’s Employment, Corporate, and Litigation Practice Groups. Robert is based in Leech Tishman’s LAX office and can be reached at 424.738.4400 or via email at rorozco@leechtishman.com

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