Perhaps no form of discrimination is more discouraging to African Americans than discrimination based upon natural hair texture.
Many employers have rules governing workers’ appearance that prohibit styles commonly associated with Black people – twists, locs, braids, cornrows, Afros, Bantu knots or fades. Of course, such policies also affect non-African Americans, including Native Americans who wear long hair braids and members of religious groups who wear headcoverings.
There is a growing movement afoot to make hair grooming policies actionable under state race discrimination laws.
Faegre Drinker, an international national law firm based in Washington, DC, recently reported that seven states have passed bills outlawing hair discrimination under state discrimination laws – CA, NY, NJ, VA, CO, WA and MA. And, eight more states are considering bills to outlaw hair discrimination: IL, MA, MI, MO, OH, PA, RI and SC.
Health and Safety?
Typically, hair discrimination policies are very broad but contain a narrow provision relating to health and safety.
Nebraska’s legislature passed a hair discrimination bill on August 11 that was vetoed by Gov. Pete Ricketts, who said in a statement that while he agreed with the bill’s intent it failed to, among other things, “add protections for employers centered on health and safety standards.”
Rickets noted employees who work in food service or around heavy machinery are often required to wear their hair a certain length or tie back or cover their hair in order to ensure their safety and the health and safety of the public. Additionally, Ricketts said the bill would, as written, preclude law enforcement agencies from “being able to maintain long-standing personal grooming policies.”
Ricketts said he will work with legislators to come up with better legislation.
The New York City Commission on Human Rights has proposed a new rule that “protects the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic or cultural identities.” The proposed NY bill makes it discriminatory to restrict or prohibit “hair texture, hairstyles, including the use of head coverings, or hair length associated with a racial or ethnic group.”
The NY proposal provides a narrow exception for an employer’s hair-related grooming or appearance policy or practice that is justified by “a legitimate health or safety concern.” Customer preference will not constitute a defense.