NYC Commission on Human Rights Formally Recognizes Race Discrimination on the Basis of Hair

According to the Commission, “[t]he New York City Human Rights Law (“NYCHRL”) protects the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities. For Black people, this includes the right to maintain 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.” The guidance defines the phrase “Black people” to include “those who identify as African, African American, Afro- Caribbean, Afro-Latin-x/a/o or otherwise having African or Black ancestry.”

Although the guidance focuses on hair-based race discrimination, the Commission observed that hair-based discrimination implicates many areas of the NYCHRL, including prohibitions against race, religion, disability, age, or gender based discrimination. “Covered entities with policies prohibiting hairstyles associated with a particular racial, ethnic, or cultural group would, with very few exceptions, run afoul of the NYCHRL’s protections against race and related forms of discrimination. While this legal enforcement guidance focuses on Black communities, these protections broadly extend to other impacted groups including but not limited to those who identify as Latin-x/a/o, Indo-Caribbean, or Native American, and also face barriers in maintaining ‘natural’ hair or specific cultural hairstyles.”

The Commission noted that race discrimination based on hair and hairstyles most closely associated with Black people has caused significant physical and psychological harm to those who wish to maintain natural hair or specific hairstyles but are forced to choose between their livelihood or education and their cultural identity and/or hair health. Due to repeat manipulation or chemically-based styling (i.e., using straighteners or relaxing hair from its natural state), Black hair may become vulnerable to breakage and loss, and the development of conditions such as trichorrhexis nodosa and traction alopecia. Trichorrhexis nodosa is a medical issue where thickened or weakened points of hair break off easily. Traction alopecia is defined as gradual hair loss, occurring from applying tension to hair. In some cases, altering hair from its natural form by way of repeat manipulation or chemically-based styling may also expose individuals to risk of severe skin and scalp damage. Medical harm may also extend beyond the skin or scalp; for instance, a 2012 study published in the American Journal of Epidemiology linked the use of hair relaxers to an increase in uterine fibroids, which disproportionately impact Black women.

The Commission opined that “covered employers that enact grooming or appearance policies that ban or require the alteration of natural hair or hair styled into twists, braids, cornrows, Afros, Bantu knots, fades, and/or locs may face liability under the NYCHRL because these policies subject Black employees to disparate treatment.” Covered employers “are engaging in unlawful race discrimination when they target natural hair or hairstyles associated with Black people, and/or harass Black employees based on their hair.”

Employers may not enact discriminatory policies that force Black employees to straighten, relax, or otherwise manipulate their hair to conform to employer expectations. The existence of such policies constitutes direct evidence of disparate treatment based on race and/or other relevant protected classes under the NYCHRL. The Commission noted that “employers that enact these types of grooming or appearance policies do not typically target hair characteristics associated with individuals with white, European ancestry.”

According to the Commission, examples of violations of include:

• A grooming policy prohibiting twists, locs, braids, cornrows, Afros, Bantu knots, or fades which are commonly associated with Black people;
• A grooming policy requiring employees to alter the state of their hair to conform to the company’s appearance standards, including having to straighten or relax hair (i.e., use chemicals or heat)
• A grooming policy banning hair that extends a certain number of inches from the scalp, thereby limiting Afros.

Discrimination can also come in the form of facially neutral grooming policies related to characteristics that may not necessarily be associated with a protected class but that are discriminatorily applied. For instance, the Commission stated that “an employer violates the NYCHRL when it enforces a grooming policy banning the use of color/dye, extensions, and/or patterned or shaved hairstyles against Black employees only.”

The NYCHRL also prohibits covered employees from harassing, imposing unfair conditions, or otherwise discriminating against employees based on aspects of their appearance associated with their race. According to the Commission, examples of discrimination include:

• Forcing Black people to obtain supervisory approval prior to changing hairstyles, but not imposing the same requirement on other people;
• Requiring only Black employees to alter or cut their hair or risk losing their jobs;
• Telling a Black employee with locs that they cannot be in a customer-facing role unless they change their hairstyle;
• Refusing to hire a Black applicant with cornrows because her hairstyle does not fit the “image” the employer is trying to project for sales representatives; and
• Mandating that Black employees hide their hair or hairstyle with a hat or visor.

Finally, the Commission admonished that “employers may not ban, limit, or otherwise restrict natural hair or hairstyles associated with Black communities to promote a certain corporate image, because of customer preference, or under the guise of speculative health or safety concerns. An employee’s hair texture or hairstyle generally has no bearing on their ability to perform the essential functions of a job.”

Where an employer does have a legitimate health or safety concern, it must consider alternative ways to meet that concern prior to imposing a ban or restriction on employees’ hairstyles. The Commission observed that “there exist a number of options that may address such concerns related to hair, including the use of hair ties, hair nets, head coverings, as well as alternative safety equipment that can accommodate various hair textures and hairstyles. Alternative options may not be offered or imposed to address concerns unrelated to actual and legitimate health or safety concerns.”