Can Employers Discriminate Against Natural Hair?

How the Legal Conversation Surrounding Hair Discrimination Is Evolving

To many people, hairstyle is part of their identity. Certain hairstyles, textures, and grooming techniques have unique cultural and personal importance. Unfortunately, some of these hairstyles can conflict with “neutral” grooming and appearance policies instituted by many employers throughout the United States. While the stated goals of these guidelines are to maintain a professional, business-appropriate appearance, they often have the inadvertent result of impacting, targeting, and disciplining employees of color.

The unfortunate reality is that hair discrimination is not unlawful in many states. However, political momentum is growing to formally prohibit the practice on the state and federal level. Some significant employers have also already signaled their willingness to accommodate natural hair in their appearance policies. Below, we cover what is considered hair discrimination, its specific legality in the United States, and recent, promising developments.

How Hair Discrimination Works in Practice

At the root of hair discrimination is the phenomenon of natural hairstyles becoming stigmatized as unprofessional. Many employers enforce appearance and grooming guidelines, which are designed to require employees to preserve “professional” haircuts and facial hair.

These guidelines tend to preclude many natural hairstyles and textures common among communities of color and specifically Black Americans. In fact, many policies choose to explicitly forbid certain hairstyles, including afros, braids, curls, twists, and knots. These restrictions have historically limited employment opportunities for people of color, who predominantly sport the natural hairstyles arbitrarily banned by appearance guidelines.

The resulting hair discrimination can take many forms: some obvious, some less so. Employers may hesitate to hire a person of color with a natural hairstyle, even if it is not explicitly precluded by a company’s appearance policy. An employer asking an employee to alter their hairstyle can lead to uncomfortable scenarios, especially in situations where a refusal to comply could result in disciplinary measures. There are even instances where a company might amend its appearance policy to prohibit certain hairstyles to justify a request. All of these circumstances leave employees with natural hairstyles in a difficult and unfair position.

Hair discrimination can also extend beyond places of employment. Many schools that institute dress codes routinely discipline and even expel students with natural hairstyles or require that their hair be cut or changed if they wish to participate in certain activities.

Authorities who engage in hair discrimination employ a litany of excuses. Beyond the usual claims of “unprofessional appearances,” some will dubiously insist natural hairstyles are not sanitary or somehow represent a danger to the workplace.

The State of Hair Discrimination Legality

Because the individuals targeted for hair- or grooming-related enforcement routinely belong to communities of color, it has become fairly obvious to legal watchdogs that hair discrimination is inextricably linked to racial discrimination. Unfortunately, the United States legal system has not necessarily agreed. In 2017, the 11th Circuit U.S. Court of Appeals dealt a blow to natural hair advocates, arguing that banning dreadlocks as part of an appearance policy did not constitute racially motivated discrimination.

In other words, the court decided that it is perfectly legal to refuse to hire someone because they have dreadlocks and that doing so is not considered discriminatory. It stands to reason that similar actions, like initiating disciplinary actions against an employee who refuses to comply with an appearance or grooming policy, could be met with similar judicial indifference.

Despite this, a coalition of anti-discrimination organizations have come together to advance legislation protecting natural hairstyles. The CROWN Coalition, or “Create a Respectful and Open World for Natural Hairstyles,” lobbies individual states and localities to enact legislation that bans hair discrimination.

So far, CROWN’s efforts have proven somewhat successful. The state of California passed The CROWN Act in July of 2019. The legislation acknowledges that even appearance and grooming policies that purport to be “race neutral” still disproportionately punish people of color. The new law took effect in 2020 and expanded the definition of “race” in the state’s Fair Employment and Housing Act and Education Code. It prevents discrimination based on protective hairstyles and natural hair textures.

In February 2019 New York City instituted local rules that permit the levying of penalties against any employer who allows or participates in disciplinary action or harassment due to an employee’s natural hairstyle. In July of that year, New York state followed NYC’s lead and passed its own version of the CROWN Act. New Jersey ratified its own statewide CROWN Act in December.

CROWN Acts banning hair discrimination have been introduced to legislatures in the following states:

  • Colorado
  • Delaware
  • Florida
  • Georgia
  • Illinois
  • Kansas
  • Kentucky
  • Louisiana
  • Maryland
  • Massachusetts
  • Michigan
  • Minnesota
  • Nebraska
  • Oregon
  • Pennsylvania
  • South Carolina
  • Tennessee
  • Virginia
  • Washington
  • West Virginia
  • Wisconsin

It remains to be seen how many state-level CROWN Acts will actually be enacted, but it is undeniable that pressure to fight hair discrimination has mounted significantly over the past several years. Some localities and cities have individually codified hair discrimination, even where statewide protections do not yet exist.

Building on this momentum, a federal ban on hair discrimination is also being explored. Senator Cory Booker introduced the CROWN Act of 2019 in December, though it is unclear if the legislation will procure the necessary votes to pass through both bodies of Congress. The law would specifically protect hairstyles associated with those of African descent, with afros, Bantu knots, braids, cornrows, locs, twists, and tightly coiled or tightly curled hairstyles specifically named. It would equate hair discrimination with discrimination already prohibited on the basis of race or national origin.

New Developments Involving Hair Discrimination

As various versions of the CROWN Act navigate the legislative process at the state or federal level, progress continues to be made in other areas. Attitudes surrounding natural hairstyles associated with communities of color are changing, especially as more attention is drawn to the issue.

Many employers have begun to listen to growing criticism and modify antiquated appearance guidelines. In November of 2020, the United Parcel Service adjusted its longstanding ban on facial hair and natural hairstyles. In addition to now allowing well-groomed beards, a memo introducing the changes also explicitly permits “afros, braids, curls, coils, locs, twists and knots.”

The company had previously faced litigation alleging their policy requiring the shaving of beards constituted racial discrimination. Publicly, Cheryl Tomé, UPS’s new CEO, cites continued employee feedback, as well as a desire to promote workplace inclusivity, as the impetus for the change.

This move represents a significant shift in national attitudes surrounding hair discrimination and natural hairstyle policies. Advocates hope that this is the beginning of a larger trend and that UPS will be joined by other large conglomerates seeking to encourage diversity and inclusivity in their workforces.

We Can Help You Fight Hair Discrimination

While prospective legislation and the UPS policy change represent big wins for those with natural hairstyles, the reality is that hair discrimination is still legally permissible in most of the country, including in the state of Indiana. Even when hair discrimination laws are not on the books, disciplinary measures or harassment stemming from natural hairstyles can still fall under the legal definitions of religious or racial discrimination.

Our employment attorneys at Cleveland Lehner Cassidy are committed to aggressively defending the legal rights of employees throughout the country. If an employer has unfairly disciplined, demoted, threatened, or terminated you as a result of your hair, we want to help. We can evaluate the facts of the situation and determine if you have a case. We are committed to promoting inclusivity and diversity in the workplace and believe no one should face resistance for adopting a natural hairstyle.

If you believe you have suffered hair discrimination, do not hesitate to call (317) 406-0855 or contact us online to schedule a free initial consultation.

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