NEW JERSEY DOES NOT PERMIT DISCRIMINATORY HAIR-GROOMING POLICIES AND PRACTICES IN WORKPLACE

Employer dress codes aimed toward the legitimate business interests of professionalism, safety, hygiene and neatness are legal. However, natural hair or hairstyles associated with African Americans, such as dreadlocks, have been historically stereotyped and perceived as unprofessional against Euro-centric standards of beauty. A simple google search of “unprofessional hairstyles” reveals many images of African Americans in natural hair or braids. This sort of discrimination has subjected people across the United States to “dignitary, psychological, physiological, and financial harm.” Federal, state and local government entities have long recognized that policies which “discriminate against traditionally Black hairstyles… qualify as discrimination on the basis of race.” See EEOC Dec. No. 71-2444, 1971 WL 3898, (1971) (“the wearing of an Afro-American hair style by a Negro has been so appropriated as a cultural symbol by members of the Negro race as to make its suppression either an automatic badge of racial prejudice or a necessary abridgment of first amendment rights.”).

Recent increased incidents of discriminatory hair-grooming policies and practices directed towards people of color in schools and the workplace has brought renewed attention on this issue. For example, a white New Jersey referee forced a black high school wrestler to cut his dreadlocks before a match or face disqualification; a 6 year boy in Florida was barred from attending a private Christian academy on his first day of school because his hair extended below his ears; and an 11 year old black girl was sent home from a private Roman catholic school in Louisiana because she broke a rule on wearing hair extensions. In 2018, “54 percent of reported bias incidents in New Jersey were motivated by the victim’s race, ethnicity, or national origin. Of those, approximately 72 percent were anti-Black.” See DCR Guidance

As a consequence of this uptick in hair based discriminatory conduct, a growing movement has developed to better protect Black employees from discrimination in the workplace based on hairstyle thereby recognizing the importance of hair to cultural identity and the historically discriminatory treatment people of color have received because of their natural hair. Indeed, this past summer Governor Gavin Newsom of California signed the Crown Act into law making it illegal in California to enforce dress code or grooming policies against hairstyles such as afros, braids, twists and locks.

Even more recently in September 2019, New Jersey’s Division on Civil Rights (“DCR”) released a Guidance on hairstyle. The Guidance does not impose new or additional requirements on employers, but rather acts to clarify and explain the DCR’s understanding of the New Jersey’s Law Against Discrimination (“LAD”) when applying it to discrimination based on hairstyles particularly associated with Black people. The Guidance provides that “[t]he LAD not only prohibits discrimination that is explicitly based on a protected characteristic, but also discrimination that is ostensibly based on something that is inextricably intertwined or closely associated with a protected characteristic.” It reasons that “[d]iscrimination that is ostensibly based on hair can inflict the very kinds of harms and personal hardships that the LAD highlights as consequences of discrimination, including economic loss; time loss; physical and emotional stress; and in some cases severe emotional trauma… or other irreparable harm resulting from the strain of employment controversies.”  Therefore, the Guidance explains that although employers can impose requirements for appropriate work appearance, it is against the law to enforce discriminatory grooming policies, or to apply facially neutral grooming policies disparately against Black people who “wear their hair in a style that is closely associated with being Black.” For example:

  1. Employers cannot ban, prohibit, disadvantage, or otherwise restrict Black employees from wearing twists, dreadlocks, braids, cornrows, Afros, Bantu knots, or fades, even if enacted for the following reasons:
    1. to project a certain “corporate image.”
    2. to address customer “preferences” or complaints
    3. to address a speculative health or safety concern
      1. When an employer has a legitimate health or safety concern, prior to imposing a ban or restriction on hairstyle, alternative options should be considered (i.e. hair nets, hair ties, head coverings, etc.).
    4. Employers cannot enact facially neutral hair-related policies—such as requirements to maintain a “professional” or “tidy” appearance—if they are discriminatorily applied or selectively enforced against Black people.
    5. Employers cannot retaliate against Black employees for objecting to discriminatory hair policies or objecting to facially neutral hair policies that are enforced in a discriminatory fashion.
    6. Employers cannot fail to address claims of harassment or a hostile work environment from Black employees due to their hairstyles being closely associated with Black cultural identity

If you have been the victim of harassment, retaliation or termination because of your hairstyle or hair texture, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, we are all well experienced in handling discrimination and retaliation cases and will aggressively seek to discover the evidence required to get your claim to a jury. Mashel Law, located in Morganville, New Jersey, is dedicated to protecting the rights of employees.