You arrive for work one morning and see that your receptionist now has neon green hair, or maybe has it braided with brightly colored beads or twisted into dreadlocks. Is this an overt breach of the dress code or a protected manifestation of racial or ethnic identity?
Thus far, the courts have mostly declined to find a protected relationship between particular hair styles and racial/ethnic identity but an increasing number of states and municipalities are now enacting laws banning hairstyle discrimination.
Courts Mane-ly on Employer’s Side
A quick internet search reveals countless news stories, blogs and other personal accounts of African American employees (most often female) being fired from their jobs because of concerns about their hair. In some instances, the employee was told that natural hair looked unprofessional or unkempt. In other situations, women with dreadlocks or ornately decorated braids heard that their hair style was too elaborate or distracting for the workplace. Some who chose to wear their hair in a tight bun were directed to change their hair because helmets or other protective wear would not fit properly.
With increasing frequency, employees in these situations have been going to court to claim that their hairstyles are intrinsically associated with their race or ethnicity. They argue that treating them differently and adversely because of their hairstyles therefore amounts to illegal race discrimination.
To date, courts have analyzed these claims in a very cut-and-dried manner that mostly favors employers. In perhaps the most oft-cited case on this arena, the 11th Circuit Court of Appeals ruled in 2016 for an employer who withdrew a job offer from an applicant who declined to observe their “no dreadlocks” policy. The court undertook a lengthy discussion on the difficulty of discerning between race as a biological construct versus a cultural identity, and eventually concluded that while Title VII protected immutable physical characteristics such as skin color and hair texture, it did not apply to choices or chosen practices.
Thus, while an Afro hairstyle might be a protected characteristic because it is the natural way in which an African American person’s hair grows, the decision to style that hair into braids, dreadlocks, hair weaves, etc. is not.
New Laws Crop Up
In 2019, California became the first state to pass a law prohibiting hairstyle discrimination. The new CROWN (Create a Respectful and Open Workplace for Natural Hair) Act was enacted to define “race”, for purposes of anti-discrimination laws, to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” This new definition explicitly includes “braids, locks, and twists.”
Shortly thereafter, the States of New York and New Jersey passed a nearly identical law, and legislatures in various other states (e.g. Kentucky, Michigan, Tennessee, and Wisconsin) have introduced their own variations for consideration. Moreover, some big cities, such as Boston and Cincinnati, have joined the movement in enacting local ordinances banning hairstyle discrimination, and many more are said to be considering doing so as well.
Grooming and Dress Code Policies to Dye For
Although Minnesota has not (yet) enacted an explicit hairstyle discrimination law, winning a hairstyle discrimination case here is not a lock. Applying grooming standards in an unequal manner can still result in a valid claim of race discrimination. Therefore, Minnesota employers should review their grooming policies and dress codes as follows:
→ Watch for inherently discriminatory standards. Banning dreadlocks or weaves while allowing elaborate Dutch or French braids could be seen as favoring White employees, whose hair is more amenable to such styles.
→ Reevaluate terms such as “neat”, “extreme” and especially “professional.” These are highly subjective concepts which could result in the manifestation of implicit bias. How can one objectively measure whether a long Afro is more extreme than neon pink hair or an elaborate perm? Why is a white male’s curly hair more professional than an African American male’s natural hair of the same length?
→ Consider whether there is a viable reason behind the particular restriction, particularly in non-customer service positions. An employer who simply says “I don’t think dreadlocks are a good look” may have difficulty defending a claim of discriminatory application of the grooming policy without a more definable and work-related rationale.
While only a few jurisdictions have enacted hairstyle discrimination bans thus far, this seems like an idea that is growing in popularity. Now is the time to brush up your grooming and dress policies to be sure that they are styled correctly.