By: Prodromos “Paul” Tsenesidis
“You should do your hair.”
“Straight is better.”
These are the types of comments that a Black female city employee named Avery would hear every single day about her hair while working as a court administrator in Manhattan. However, Avery is not the only one with this story; this is a common problem Black men and women face in the work place all across the country. As of February 2019, the New York City Commission on Human Rights is working to put an end to this type of racial discrimination.
In a first-of-its-kind policy, the New York City’s Commission on Human Rights released new guidelines regulating discrimination on the basis of hair. While these guidelines were passed to protect all New Yorkers, the guidelines are primarily directed to remedy the invidious and persistent discrimination—both explicit and implicit—that Black people often face because of their hairstyles. The Commission recognizes that hair-based discrimination implicates many areas of the New York City Human Rights Law (“NYCHRL”), such as prohibitions against discrimination based on race, religion, disability, age, or gender. The Legal Enforcement Guidance was published with the goal of bringing attention to the protections available under the NYCHRL “for people who maintain particular hairstyles as part of a racial or ethnic identity, or as part of a cultural practice, regardless of the mutable nature of such characteristics.”
Essentially, the NYCHRL protects “the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities.” The guidelines acknowledge the difficulties Black people, among others, have maintaining “natural hair” and provides New Yorkers with the right to maintain natural hair, treated or untreated hairstyles and the right to keep hair in an uncut or untrimmed state. The Commission recognizes that there is “a widespread and fundamentally racist belief that Black hairstyles are not suited for formal settings, and may be unhygienic, messy, disruptive, or unkempt.” For example, the guidelines specifically mentioned that this guidance protects Black people who have locs, cornrows, twists, braids, Bantu knots, fades or Afros from being discriminated against based on their hairstyle.
This means that employers with more than four workers cannot directly or indirectly discriminate against employees. Now, employers cannot enact policies that require the alteration of natural hair, or ban any of the above-mentioned hairstyles; such policies will be found to violate the NYCHRL. For example, even though an employer can create requirements requesting a “work appropriate appearance” or that employees maintain a “neat and orderly” hairstyle, an employer cannot enforce such a policy in a discriminatory manner, or in a way that will have a discriminatory effect. Additionally, the NYCHRL prohibits New York City employees from being harassed or subject to unfair conditions on aspects of their appearance associated with their race, even if this is done with the purpose of promoting a certain corporate image, or under the guise of speculative health or safety concerns.
What does this mean for employers? It means that they should evaluate “any existing grooming or appearance policies, standards, or norms relating to professionalism to ensure they are inclusive of the racial, ethnic, and cultural identities and practices associated with Black and historically marginalized communities.” If they do not, they can be subject to the Commission’s power to levy penalties (up to $250,000 with no cap on actual damages), or the Commission’s ability to force a reoffending company to rehire certain individuals or change their internal policies.
