July 26, 2019

New York Joins California in Banning Race-Based Hair Discrimination in Employment

New York has become the second state, following California, to explicitly ban race-based hair discrimination in employment.

On July 12, 2019, New York Gov. Andrew Cuomo signed S.6209A/A.7797A amending the Human Rights Law to expand the definition of race discrimination to include discrimination against traits or hairstyles “historically associated with race, including but not limited to hair texture and protective hairstyles.” The amendment was effective immediately.

Under the amendment, examples of protective styles include braids, locs and twists, which are hairstyles traditionally associated with black Americans. The Human Rights Law applies to all employers in New York with four or more employees.

Hairstyle discrimination had previously been prohibited in New York City (NYC), when in February 2019, the New York City Commission on Human Rights issued guidance with similar protections, confirming that the NYC Human Rights Law prohibited discrimination based on natural hairstyles or hairstyles that are closely associated with an employee’s racial, ethnic or cultural identity.

Background

While the federal courts have long recognized that hair discrimination can be a method by which an employer expresses racial discrimination, courts have typically drawn a distinction between hairstyles that are the product of natural hair growth and “artificial” hairstyles, using the latter to reject discrimination claims when based on adverse treatment on the basis of hairstyles such as braids and locs. See Rogers v. Am. Airlines, Inc., 527 F. Supp. 229, 231-32 (S.D.N.Y. 1981).

Applying this standard most recently in U.S. Equal Employment Opportunity Commission v. Catastrophe Management Solutions, 876 F.3d 1273, 1278-90 (11th Cir. 2017), the U.S. Court of Appeals for the 11th Circuit held that an employer did not engage in unlawful discrimination when it rescinded a job offer when the applicant refused to remove her locs because locs are not immutable. The Supreme Court subsequently declined to review the case, leaving in place the distinction between natural hairstyles and artificial hairstyles under federal law.

Other State Action

A few weeks prior to New York’s amendment, on July 3, 2019, California became the first state to pass a law banning hairstyle discrimination. California’s law, which is scheduled to go into effect in January 2020, amends the California Fair Employment and Housing Act and prohibits discrimination of the basis of traits historically associated with race, including hair texture and other hairstyles.

The background of the California amendment specifically addresses that employers are prohibited from enforcing neutral grooming policies that have a disproportionate impact on persons of color, but also specifically allows employers to continue to uphold grooming or hairstyle policies that are based on bona fide business reasons, such as health and safety.

New Jersey currently has a pending bill, Senate Bill 3945, which if passed, will provide protections similar to the California and New York laws. Advocacy groups are pushing for legislation across the country to ensure that traits historically associated with race, such as hair texture and hairstyle, are protected from discrimination in the workplace. Other states and municipalities may follow in the steps of California and New York.

Employers, and particularly those with operations or employees in New York and California, should carefully review their policies, including appearance, grooming, and uniform policies and related practices, to ensure compliance with these recent developments. Faegre Baker Daniels will continue to monitor developments in this area.

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