Hairstyle-Discrimination Bans Help Shield Workers from Race Bias

 

Jathan Janove, J.D. By Jathan Janove, J.D. September 20, 2019
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California recently became the first state to ban workplace discrimination based on hairstyle. New York quickly followed with similar legislation, and New Jersey lawmakers have also considered a comparable bill. Here's what employers should know about this emerging trend.

These laws protect employees and applicants from discrimination based on their hair texture and hairstyles. As stated in the California law, "hair remains a rampant source of racial discrimination with serious economic and health consequences, especially for black individuals."

Sen. Holly Mitchell, D-Los Angeles, who authored California's bill, said, "There are many cases of black employees and applicants being denied employment or promotion, and even terminated, because they chose to wear a natural hairstyle.

"We are not talking about truly distracting hairstyles," she added. "We are speaking of groomed hairstyles, like my locs, that would, without question, fit an image of professionalism if bias or negative stereotypes were not involved."

Black Women Report Bias at Work

Steven Gatley, a management attorney with Lewis Brisbois in Los Angeles, said he was initially skeptical that California's new law would provide any further protections for employees or was even really necessary.

The legislation is known as the CROWN Act, which stands for Creating a Respectful and Open Workplace for Natural Hair. The new law is primarily focused on protecting black employees who wear traditional hairstyles associated with their race, such as Afros, dreadlocks (or locs), cornrows, braids and twists.

Workers can already bring claims for discrimination or harassment based on race, so the law seemed redundant to Gatley. But he changed his mind after he reviewed the history behind California's law and the research supporting it. "This law is not redundant but necessary to provide further protections for African-American women in the workplace," he said.

Dove, the personal care brand, supported the bill and sponsored a study of 2,000 women between ages 25 and 64 who had experience in a corporate job. Half the respondents were black, and the other half were white. Black respondents were 50 percent more likely to report being sent home from work because of their hairstyle. Furthermore, black respondents were 80 percent more likely to say they have changed their hairstyle to fit in at the office.

Black women were also 30 percent more likely than white women to report that they were given a formal grooming policy to review either before the application process or during orientation for a new job.

Review Policies and Practices

New York's law is already in place, and California's bill takes effect Jan. 1, 2020. Each measure specifically adds to the definition of race under the respective state's anti-discrimination laws "traits historically associated with race, including, but not limited to, hair texture and protective hairstyles."

"I believe we will see a rise in race-related claims here in California based on hairstyles," Gatley noted.

So employers should take a look at their policies and practices, consider revising them based on new guidance, and train managers on workplace appearance and grooming policies.

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Richard Greenberg, attorney with Jackson Lewis in New York City, predicts that other jurisdictions will likely pass similar legislation or enact similar guidance.

He recommends that employers modify appearance policies to include a statement such as "to the extent required by applicable law, the company will make accommodations based on religious or cultural beliefs."

Depending on the workforce and industry, an employer may want to be even more explicit and affirmatively provide protection for natural hairstyles, he noted.

Existing policies should be reviewed to eliminate language, such as "no dreadlocks," that directly poses issues, and managers and recruiters should be trained to ensure that they do not make statements that violate the law.

As a broader measure, Greenberg said, "employers can recognize the increasing cultural diversity of the workplace and changing social mores, and consider overall policy modifications to maximize employee satisfaction."

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