Hair Discrimination at Work - What Should Employees Know?

Despite longstanding federal and state laws prohibiting employment discrimination, workers across the United States are still subject to unequal treatment based on protected characteristics. One particular type of discrimination that is now gaining attention is hair discrimination. Several states, including Pennsylvania, are seeking to end the grooming policies that prohibit African American employees from wearing hairstyles closely associated with their culture. In light of this impending legal shift, there are some issues that employees should know about hair discrimination at work.

Grooming Policies at Work

For decades, many employers have had grooming policies in place that banned traditional African American hairstyles, such as locks, twists, cornrows, braids, and afros. This is largely due to the widespread misperception that natural African American hairstyles are unprofessional and inappropriate for the workplace. Both government and private employers have only recently begun to acknowledge the discriminatory nature of such grooming policies.

African American employees who would prefer to sport their natural hair have been forced to conform to Caucasian standards of beauty by straightening their hair. This has caused not only psychological harm, but also physical harm, as
one popular method to straighten hair is to use chemical relaxers. Repeated chemical-based styling often leads to diminished hair health and other negative consequences. A study published in the American Journal of Epidemiology reveals that there is a link between the use of hair relaxers and an increase in uterine fibroids.

These grooming policies have undoubtedly placed a burden on African American workers who must choose between wearing their preferred hairstyles and keeping employment. Some African American employees wish to proudly display their cultural identities through their hair, while others choose natural hairstyles because they are low maintenance or less expensive to upkeep. Regardless of the reason, many African American employees have not been allowed to express their natural hairstyles in the workplace.

Hair Discrimination is Now Illegal in Some States

Thus far, federal law has been unclear regarding hair discrimination. There is no specific language in Title VII of the Civil Rights Act of 1964 banning hair discrimination. However, many have come to realize that hair is a determining factor of a person’s race, therefore hair discrimination can be linked to race discrimination. Race discrimination is prohibited by both federal and state law. This relatively recent societal shift regarding appearance norms is now reaching the workplace as more employers adopt inclusive grooming policies.

Given the disproportionate effect of grooming policies, some states have begun to enact laws prohibiting hair discrimination. California was the first state to ban hair discrimination in June 2019 by passing the Create a Respectful and Open World for Natural Hair Act (CROWN Act). This law amends the definition of race in the California Fair Employment and Housing Act (FEHA) and the California Education Code to include traits associated with race, such as hairstyles.

New York also amended its New York City Human Rights Law (NYCHRL) to include an anti-hair discrimination law and disseminated hair discrimination guidance from the New York City Commission on Human Rights. Under its new anti-discrimination provisions, employers who harass, demote, or fire employees because of hairstyles may be subject to legal consequences.

Most recently, New Jersey Gov. Phil Murphy signed the CROWN Act into law last December. The CROWN Act amends the definition of race to include traits historically associated with race, including hair texture, type, and protective hairstyles, in the New Jersey Law Against Discrimination (NJLAD). So far, these three states are the only ones that have passed anti-hair discrimination laws, however, others are contemplating similar proposed legislation.

Pennsylvania is one of 22 additional states that is now considering adopting their own version of the CROWN Act. A federal version of the CROWN Act was also proposed in December 2019 to prohibit hair discrimination as a form of race or national origin discrimination.

How Might the Anti-Hair Discrimination Trend Affect Existing Laws?

Federal anti-discrimination laws generally apply to Pennsylvania employers with 15 or more employees. Additionally, the Pennsylvania Human Relations Act applies to employers with four or more employees. Under this state anti-discrimination law, it is illegal to discriminate against an individual based on their race, color, or national origin in addition to other protected characteristics, such as age and religious creed.

Discrimination is not always overt, subtle or passive acts can also qualify as well as unintentional discrimination and outwardly non-discriminatory policies with a disparate impact. The Pennsylvania Human Relations Commission (PHRC) provides guidance on what constitutes an unlawful discriminatory practice:

Firing, demoting, or refusing to hire someone based on protected characteristics and not job performance or other eligibility factors.

Paying someone less than a co-worker with a comparable job due to their race or another protected characteristic.

Implementing a policy that negatively affects one group of people more than other groups.

Disciplining an employee differently than another based on a protected characteristic.

Not offering the same work terms, conditions, or benefits to certain employees based on protected characteristics.

If Pennsylvania adopts the CROWN Act or similar legislation, employees who choose to wear their hair in a protective or cultural hairstyle would be more clearly protected under the law. Employers would have to amend their existing grooming policies that disproportionately affect African American employees. It would be illegal for employers to refuse to hire, not promote, discipline, or fire a worker based on their hairstyle.

What Legal Recourse Do Victims of Hair Discrimination Have?

Employees have a right to be free from discrimination in employment, housing, and public accommodation. Those who are subject to hair discrimination or any other form of race or national origin discrimination may file a claim against their employer.

An employee may either file a workplace discrimination claim with the PHRC or the federal Equal Employment Opportunity Commission (EEOC). It is generally preferable to file a claim with the state agency as state law provides more protections than federal; however, a Pennsylvania employee should contact a lawyer to discuss the best course of action in their particular case.

Remedies for Employment Discrimination

If the PHRC or the EEOC finds that an employer has engaged in an unlawful discriminatory practice, the remedy will depend upon the type of discrimination involved. For example, an employee who was fired for wearing a particular hairstyle may be reinstated in their position. An employee who was denied a promotion due to discrimination may receive placement in the promoted position as well as back pay and benefits.

A discriminatory employer will also be required to cease any discriminatory practices, take steps to prevent future discrimination, and pay for the employee’s lawyer fees and court costs. If a case involves especially malicious or reckless acts of discrimination, an employer may also be subject to punitive damages. To determine the right remedy, an employee should speak with a lawyer.

Mr. Gold is the principal shareholder of the Pennsylvania & New Jersey employment law firm of Sidney L. Gold & Associates, P.C. in Philadelphia, which has been recognized by the Martindale-Hubbell Bar Register as a preeminent law firm in the field of employment law and civil rights litigation. His practice, as well as that of the law firm, is exclusively concentrated in the representation of both employees and employers in all aspects of employment related litigation in Pennsylvania and New Jersey, including claims under federal and state anti-discrimination laws and federal civil rights laws.

Copyright Sidney L. Gold & Associates, P.C.

Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws they may affect a case. For specific technical or legal advice on the information provided and related topics, please contact the author.

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