Among other protections, Title VII of the Civil Rights Act of 1964 (“Title VII”) explicitly prohibits employers from discriminating against employees and job applicants based on race. Despite Title VII’s goal to achieve equal opportunities in the workplace, some federal courts have found that the prohibition against racial discrimination only protects immutable characteristics. That interpretation includes race and color, but not necessarily cultural attributes such as distinct hairstyles. For example, in 2016 the Eleventh Circuit issued an opinion stating that there was no intentional racial discrimination when a White human resource manager rescinded a job offer to a Black job applicant who refused to cut her locs (formerly called “dreadlocks”) for a customer service position at a call center.
Not withstanding federal courts’ interpretations, so-called “race neutral” grooming policies that do not permit afros, twist outs, locs, or other traditionally Black hairstyles are inherently anti-Black and impose a Eurocentric standard of what is considered “professional.” Employees should not be forced to cut-off their hair, chemically alter their hair, or use excessive heat on their hair in order to resemble a hairstyle that is contrary to their natural hair texture. Yet, this is precisely what many Black employees confront when they must use chemical hair relaxers and flat irons or hot combs (which can exceed heat temperatures of 300°F) in order to obtain straight hair—subjectively deemed professional—as opposed to wearing hairstyles that are suitable for their naturally coiled hair.
Additionally, some courts have drawn a faulty distinction of what qualifies as natural hair. A U.S. District Court in Georgia recognized that a grooming policy prohibiting an afro style “might constitute employment discrimination because such a policy would prohibit a natural hairstyle that is tied to an immutable characteristic.” Yet, the Court held that even though an afro style may be protected, locs were not similarly protected. This distinction is disingenuous because locs, like the afro, are also tied to the immutable characteristic of Black hair texture. Natural hair is defined as hair that has not been processed with a chemical relaxer—not whether the hair is styled a particular way. Therefore, locs are a form of wearing natural hair and must be protected against discrimination in the same manner that other afro styles may be protected.
Some state legislatures have recognized the gravity of this issue. California recently passed the Creating a Respectful and Open Workplace for Natural Hair Act (“CROWN Act”). The law amends California’s civil rights statute to unambiguously prohibit discrimination against traditionally Black hairstyles. Once the law takes effect after January 1, 2020, employees or job applicants who have experienced adverse employment actions because of their natural hairstyles may file a discrimination complaint with California’s Department of Fair Employment and Housing.
New York state has enacted a nearly identical law prohibiting hair discrimination. The law took effect immediately after it was signed by New York’s governor and also allows individuals to file a discrimination complaint with the New York State Division of Human Rights if they believe they have been denied a job opportunity because of their natural hair. (Individuals should consult with an attorney before filing a complaint in either jurisdiction to understand the applicable time limits and procedural requirements.)
Employees and applicants located outside of California and New York are not completely without recourse, however. Even though federal law does not expressly prohibit discrimination against traditionally Black hairstyles, Title VII does prohibit employment practices that have a discriminatory effect on protected groups. This claim is recognized as a “disparate impact” claim. Under this theory, a job requirement that seems neutral can still be found to discriminate against a particular group—unless the employer can demonstrate that the policy is job-related and a business necessity. Accordingly, specific hair grooming policies that disproportionately exclude Black employees from job opportunities may violate Title VII even if that result was not the intent when the policy was established.
Although in the past many courts have upheld grooming policies that forbid certain Black hairstyles (especially locs), these cases were not presented during a time when significant numbers of Black people were wearing natural hair. Now, this is changing. A growing number of Black people, especially Black women, are recognizing the absurdity of being required to maintain a hairstyle that is contrary to their natural hair texture and, instead, are opting to wear their natural hair consistent with that texture. Consequently, exclusionary grooming policies will likely begin to more adversely impact Black employees and applicants. Theoretically, a facially neutral policy that requires a “professional” appearance, but in effect, disproportionately excludes Black candidates—as a result of traditionally Black natural hairstyles being categorized as unprofessional—may be sufficient to sustain a disparate impact claim.
For disparate impact claims, plaintiffs hoping to use this avenue must be prepared to show—and not merely speculate—that the policy has a statistically significant adverse effect on the protected class. Admittedly, obtaining the necessary statistical evidence will be difficult. Yet, federal courts have left the door open for the use of disparate impact claims. In the Eleventh Circuit opinion,discussed above, the Court cautioned that it was not considering a disparate impact theory because the U.S. Equal Employment Opportunity Commission (“EEOC”) only alleged a disparate treatment claim (i.e. intentional discrimination) in the suit:
Despite some loose language in its proposed amended complaint, the EEOC confirmed at oral argument that it is proceeding only on a disparate treatment theory…and is not pursuing a disparate impact theory…To prevail on a disparate treatment claim, a Title VII plaintiff must demonstrate that an employer intentionally discriminated against her on the basis of a protected characteristic. In contrast, a disparate impact claim does not require proof of discriminatory intent. A disparate impact claim targets an employment practice that has an actual, though not necessarily deliberate, adverse impact on protected groups.
Nonetheless, more state legislatures are in the process of explicitly outlawing hair discrimination. Therefore, a growing number of employees and applicants will soon have additional remedies to combat arbitrary adverse employment actions based on their hair.
All employees deserve dignity at their workplace. Requiring employees to chemically alter their natural hair or to cut-off their hair is inhumane and should not be tolerated in a society that seeks to eradicate racial discrimination in the workplace. Employers should be proactive by implementing grooming policies that embrace diversity and do not arbitrarily exclude protected classes of qualified individuals. Regardless, Black employees faced with exclusionary grooming policies are gradually gaining new avenues to help comb through the injustice.
By Sacred B. Huff
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