Excerpted from a FisherBroyles LLP blog by Richard B. Cohen

A great article was posted last year in The New York Times, entitled “Why Are Black People Still Punished for Their Hair?” by Ría Tabacco Mar. It had as a sub-heading: “Only black people are shamed when they choose to wear hairstyles consistent with their natural hair texture.”

Ría was told in law school that “you’ll never look really professional with your hair in dreadlocks.” She watched a video of a Black student crying because her box braided hair apparently “violated a dress code prohibition against ‘unnatural’ hair styles” and she was forced out of school. As Ría says, “the braids included hair extensions. Extensions are sometimes used in black hairstyles, like braids, that don’t require the use of damaging chemical straighteners.”

She also noted that “a 6-year-old black boy in Florida was barred from school because of his locs, also known as dreadlocks.”

The New York Times reported on February 18 that in New York City “the targeting of people based on their hair or hairstyle, at work, school or in public spaces, will now be considered racial discrimination” under new guidelines to be issued by the New York City Commission on Human Rights – the local version of the U.S. Equal Employment Opportunity Commission (EEOC).

This is likely the first such law or guidelines in the US.

While the new law will apply to everyone in NYC, “the guidelines specifically mention the right of New Yorkers to maintain their ‘natural hair, treated or untreated hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.’”

Reminded me of a case from 2013 where the EEOC sued on behalf of a Black job applicant “who had blond hair dreaded in neat curls, or ‘curllocks,’ in violation of company appearance policy.” Her job offer was rescinded when she refused to cut them off. The EEOC claimed that this was a violation of Title VII’s prohibition against racial discrimination in that it was based upon physical and/or cultural characteristics unique to Black people.

An amicus brief filed by the NAACP Legal Defense Fund noted that the employer used “a facially neutral grooming policy to give effect to its preference for hairstyles that suit white hair texture better than Black hair texture.”

The EEOC contended that “there are racial distinctions in the natural texture of black and non-black hair. The EEOC will not tolerate employment discrimination against African-American employees because they choose to wear and display the natural texture of their hair, manage and style their hair in a manner amenable to it, or manage and style their hair in a manner differently from non-blacks.”

A federal appeals court, however, ultimately decided against the EEOC in 2016, and the US Supreme declined to hear that case.

Ría said:
“The appeals court reasoned that discrimination based on race is forbidden because, it said, race is immutable, while hairstyles can be changed. It’s true that hairstyles involve some degree of personal choice, but that doesn’t give employers free rein to discriminate against workers who wear dreadlocks, a hairstyle said to be named by slave traders who viewed African hair as ‘dreadful.’”

However, as Ría pointed out: “When it comes to hair, only black people and multiracial people of African descent are punished when they choose to wear styles consistent with their natural hair texture. It’s unthinkable that a court would uphold a policy that effectively required white workers to alter their hair texture through costly, time-consuming procedures involving harsh chemicals.”