Declaring that "anti-Black racism, along with implicit and explicit bias against Black people, is an entrenched and pervasive problem both in New Jersey and across the country" the N.J. Division on Civil Rights has issued guidance prohibiting employment discrimination based on hairstyles.
According to the guidance “enforcing grooming or appearance policies that ban, limit, or restrict hairstyles closely associated with Black people, including, but not limited to, twists, braids, cornrows, Afros, locks, Bantu knots, and fades” may constitute an unlawful employment practice.
Earlier in the year a bill was introduced in the New Jersey Senate and Assembly would amend the state’s Law Against Discrimination to broaden the definition of “race” to provide greater protection for individual hairstyles and prohibit hair discrimination in the workplace, housing, and schools.
The amendment would protect “traits historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles.” The term “protective hairstyles” includes braids, locks, twists, and Afros.
The legislative action was in reaction to a New Jersey wrestler who was told by a referee to cut his hair immediately prior to his scheduled competition in order to avoid forfeiting his match. The incident went viral and, well, you know what happens after that happens.
There is not much legal precedent for the protection of hair. Indeed, last year the United States Supreme Court refused an NAACP Legal Defense and Educational Fund request to review a case in which a black woman had her job offer rescinded at an insurance company after she refused to cut off her dreadlocks.
The lower court ruled in favor of the employer reasoning that discrimination based on race is forbidden because, it said, race is immutable, while hairstyles can be changed. In other words, hairstyle is based on personal preference not necessarily a characteristic of race.
But according to State Senator Sandra Cunningham, the bill’s primary sponsor, “everybody has the right to decide what they want to look like and how they want to present themselves” adding that she hopes that the bill will “open up the eyes of some companies that have played a role in this.”
One wonders whether the guidance represents a solution in search of a problem. Afterall, a racially biased employer will not hire an African-African because of race. What difference does hairstyle make? The African American applicant could have a crew-out and it wouldn’t matter to a racially biased employer.
The guidance explains:
“Many policies that ban traditionally Black hairstyles while leaving traditionally white hairstyles untouched are rooted in the pervasive stereotype that Black hairstyles are somehow ‘unprofessional’ or ‘unkempt.’ And attempting to conform to racial stereotypes about what constitutes ‘professional’ or ‘neat’ hair can be expensive, time-consuming, dangerous, and psychologically harmful to Black people.”
So, are we talking about equal treatment or preferential treatment?
What if a sales job requires “professional appearance” and the criteria is applied equally to men and women of any color? The white male job applicant with a pony tail will be rejected equally with the African American male applicant with braids. Is that job discrimination?
Most likely not. The guidance explains:
“Hair-related policies that are facially neutral - such as requirements to maintain a ‘professional’ or ‘tidy’ appearance - will likely violate the [law] if they are discriminatorily applied or selectively enforced against Black people, such as if Black people with shoulder-length locks or braids are told that they cannot maintain their hairstyle because it is not ‘tidy,’ whereas white people with shoulder-length hair are not told to change their hair.
In other words, such policies must be equally applied regardless of race. Such would be the case in applying health and safety rules as well. The same rule for everyone.
Additionally, employers may not retaliate against employees for objecting to discrimination, including objecting to discriminatory hair policies or objecting to facially neutral hair policies that are enforced in a discriminatory fashion.
Will this legal standard lead to frivolous complaining? I don’t think so.
First, as noted, hair style, locks or no locks, doesn’t matter to a racially-biased employer.
Second, in an era of facial piercing and tattooing, if an applicant is qualified and is willing to work at the employer’s price, the person is going to get hired, locks or no locks.
Third, if an employer requires an applicant for a job to be well-groomed, the unkempt white guy is going to be rejected.
The bottom line, the Division on Civil Rights is sending an important message to employers. Job discrimination exists and evidence that an employment decision based on racially-associated hair styles is unlawful.