Workers of color in New York City should be mindful that their employers can no longer ask them to change their hairstyle, employment attorneys say, and any policy that says otherwise should be scrapped.
Employers who previously asked persons of color to chemically straighten their hair, limit the size of it, or take other steps to change it from anything but natural are now prohibited from doing so after a guidance from the NYC Commission on Human Rights banned the practice last month.
Avi Lew, a partner at Warshaw Burstein in Manhattan, said employers should go through any existing policy they may have on workplace appearance and ensure it doesn’t contradict the new guidance.
“In light of the new guidelines provided by the New York City Commission on Human Rights, New York City employers should review their human resources policies and employee manuals to make certain that any existing grooming or appearance policies, procedures, standards, or norms relating to professionalism do not violate the recent interpretation of the New York City Human Rights Law provided by the Guidance,” Lew said.
The guidance was issued last month by the city agency, which said explicitly that forcing employees to change their hairstyle is perceived as a form of racism and consequently prohibited under the city human rights law.
“Any kind of action in which you’re requiring black people to either get approval for their hairstyles, change their hairstyles, refusing to hire people because on their hairstyles, requiring that black people hide their hair, is expressly forbidden under this regulation,” said Miriam Clark, a name partner at Ritz Clark & Ben-Asher in Manhattan who serves as the president of the National Employment Lawyers Association in New York.
The guidance isn’t limited to employers. Any entity that provides a public accommodation, like a fitness club, school, nightclub or other such place is also prohibited from forcing people of color to change their natural hair as a requirement of being allowed entry.
Employers, schools and other businesses don’t have to adopt a policy explicitly stating that discrimination based on hairstyle is unlawful, but Clark said it might be a good idea for institutions to think about providing guidance to their employees in light of the new regulation.
“This guidance doesn’t require that employers have policies, but I do think it would probably be helpful, especially in a large employer … where various store managers have their own unique ideas on what the store’s image should be,” Clark said. “In a situation like that, where there’s a chance this kind of discrimination is going on and HR doesn’t know about it, it might be wise to have a policy.”
The guidance spells out three broad examples that employers should pay attention to where discrimination on the basis of hair is explicitly prohibited, Clark said. The first says employers cannot ask a person of color to change their hairstyle from one that’s considered natural or closely associated with their identity, like twists or braids.
The second and third, Clark said, bar employers and other places from requiring people of color to have their hair chemically straightened or measured as a certain distance from their scalp. The latter category refers to policies limiting the number of inches hair can extend out from the head, which employers use to limit the size of Afros.
If there’s a health of safety concern, employers can’t just use that as a way to ask their workers to change a hairstyle, according to the guidance. They have to exhaust every other possible alternative before imposing a ban or restriction, like hairnets, ties and other options. That’s to prevent employers from imposing racist views on their workers, the guidance said.
“There is a widespread and fundamentally racist belief that Black hairstyles are not suited for formal settings, and may be unhygienic, messy, disruptive, or unkempt,” the guidance said.
Employers could have to pay up to $250,000 in penalties by the city if they don’t comply with the guidance. They could also be forced to pay damages to an employee who’s been discriminated against. There’s no cap on that amount.