By Joseph Hunt
Race under Title VII is often framed as an “immutable characteristic.” Yet courts struggle with the notion that expressions of identity and culture can be extensions of race. Hair is a good example. One’s hair may be part of one’s racial identity, and it can serve as a proxy for race. Courts, however, have been reluctant to embrace a view of race to include, for example, African-American hairstyles, which might be, in the pragmatic sense, mutable characteristics.
California and New York recently became the first states to ban discrimination based on hair. The laws amend the definition of race to include traits historically associated with race, like hair texture and protective hairstyles. “Protective” hairstyles include “braids, locks, and twists.” The laws will challenge even facially neutral policies concerning grooming and appearance, which may disproportionately impact people of color based on Caucasian norms about professional appearance.
More states are likely to follow suit. Employers should review their grooming and appearance policies. Scrutinize policies requiring employees to keep a professional appearance to ensure they do not prohibit hairstyles associated with race. These policies should be based on legitimate business needs, not personal preferences. Make clear to management, and in your written policies, that discrimination based on natural hair and hairstyles is prohibited.