As is oftentimes the case, new laws are enacted (or existing laws are strengthened) in response to widely-publicized events we read about in the news or see on television. Many readers will no doubt recall a story that went viral back in December, when Andrew Johnson, a black New Jersey high school student, was faced with the choice of either having his dreadlocks cut off or being disqualified from participating in a wrestling match. The white referee (with a prior history of accusations of racism) took the position that the student’s hairstyle and hair length was a code violation and gave him a mere 90 seconds to either cut his hair or forfeit. Andrew consented to have his hair cut, and went on to win the match, but not before first suffering the humiliation of having part of his identity literally chopped off. The referee has since been banned from officiating at further wrestling matches and is the subject of an investigation by the New Jersey Division on Civil Rights. However, needless to say the damage done to this unfortunate kid will probably last a lifetime.

In an effort to combat discrimination of this type, the New York City Commission on Human Rights (hereinafter the “Commission”) recently issued guidance which clarifies the Commission’s position that discrimination based upon an individual’s hairstyle constitutes a form of discrimination based upon race, ethnicity or cultural identity. While the new guidelines extensively discuss and address discrimination experienced by the black community, they are not limited to that community and state that they apply equally to all persons in New York City having a religious or cultural connection with certain hairstyles and/or with uncut hair, including Native Americans, Sikhs, Muslims, Jews and Rastafarians. Included among the many examples given by the Commission are requiring employees with gray hair to color it as a condition of employment, and requiring a male server to cut his ponytail while not requiring same of female servers. Clearly, the guidance interprets the New York City Human Rights Law in a broad manner when it comes to hair-based discriminatory practices, and the law’s reach should be interpreted expansively rather than restrictively.

In announcing the new guidance, the Commission noted that “Anti-Black racism is an invidious and persistent form of discrimination across the nation and in New York City. Anti-Black racism can be explicit and implicit, individual and structural, and it can manifest through entrenched stereotypes and biases, conscious and unconscious. Anti-Black bias also includes discrimination based on characteristics and cultural practices associated with being Black, including prohibitions on natural hair or hairstyles most closely associated with Black people. Bans or restrictions on natural hair or hairstyles associated with Black people are often rooted in white standards of appearance and perpetuate racist stereotypes that Black hairstyles are unprofessional. Such policies exacerbate anti-Black bias in employment, at school, while playing sports, and in other areas of daily living. The 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.”

While there are exceptions to the guidelines where legitimate health or safety concerns are involved (for example, foodservice workers may be required to cover their hair with a hairnet), the exceptions for the most part do not apply to this industry. Thus, you cannot force an employee driver to cut her dreadlocks because it doesn’t fit the “corporate image,” nor can you refuse to hire a Black applicant for a sales position due to her cornrows, or maker her hide them under a scarf or other head covering. Can you prohibit an employee from dying her hair emerald green? Probably, but in today’s litigious world I’d consider ignoring it if it doesn’t impact your business (she’ll probably get bored with it in a week), or at the very least engage her in a dialogue to see if she claims it’s somehow associated with some sort of protected category. Certainly, if you permit your male employees to have green hair, don’t bar their female counterparts from going green as well.

As you have likely guessed, violations of the NYCHRL carry with them potent penalties, and these guidelines are no exception, giving legal recourse to anyone who has been harassed, punished, threatened or fired because of their hair. Among other remedies, the Commission can impose penalties of up to $250,000, with no cap on damages. It can also force non-compliant employers to re-hire improperly terminated employees and change their policies.

If your business is located within the Big Apple, you would be well-advised to go over any appearance and grooming standards presently in place, and make sure that they don’t run afoul of these new guidelines. Likewise, supervisors and managers should be made aware that discrimination on the basis of an employee or potential employee’s hairstyle is unlawful in the City of New York.

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Article by Lawrence I. Cohen

Laurence I. Cohen is a partner with Pike, Tuch & Cohen, LLP, a Bellmore, NY-based law firm.

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