Title VIII of the Civils Rights Act of 1964 (“Title VII”) prohibits all employers (with 15 or more employees) from discriminating against employees on the basis on sex, race, color, national origin and religion. Claims brought under Title VII are enforced by the Equal Employment Opportunity Commission (“EEOC”) and privately by attorneys. One type of discrimination, however remains unactionable under Title VII: discrimination based on hair style.
Discrimination based on one’s hair style disproportionately affects people of color, specifically, black people who have afro-textured hair that has not been chemically straightened. Historically, black hairstyles have been stereotyped as “unprofessional” in the workplace. Moreover, employers have terminated employees based on an employee’s hairstyle, as was done in Bryan v. AEG Management Brooklyn, LLC, in which an African American woman was terminated for wearing her hair in a natural, untreated style.
In Bryan v. AEG, Tiffany Bryan, who was employed by the Defendant, AEG Management Brooklyn, LLC (“AEG”), preferred to wear her natural hair in the style of an afro. Her employer requested that she wear headbands, reasoning that her hair style looked as if she “stuck her finger in a socket” or “was electrocuted.” Bryan agreed to wear a headband. Yet, AEG still deemed her hair as inadequate and inappropriate for the job and requested that she wear a ponytail. Bryan explained that the tension from ponytails gave her serious headaches and refused to oblige her employer’s request. In response, AEG terminated Bryan.
Bryan’s case is a prime example of how employers discriminate against black employees, by creating a race-based policy vis-a-vis hairstyle. Policies against hair styles should be neutral, meaning that, should employers request certain hairstyles, they must do so for every employee and not target employees of a particular race. As certain hairstyles are worn predominantly by most of a certain race, discriminating against specific hairstyles can also indirectly target the races associated with those hairstyles. Styles such as cornrows, braids, and afros have African, Caribbean and African-American origins and, although these styles can be worn by other races, they are worn predominantly by black individuals. As such, discriminating against these hairstyles constitutes race-based discrimination. As these styles are so closely associated with race, black hairstyles should therefore be legally protected from discrimination based on race.
New York City’s Commission on Human Rights shares this view and seeks to make black hairstyles a protected characteristic under New York City Human Rights Law (“NYCHRL”). In February of 2019, New York City’s Commission on Human rights released legal guidelines which prohibit employers from discriminating against employees for wearing their natural hair or other various styles, such as twists, locks, afros, bantu knots, and fades, thereby protecting the rights of employees to wear their hair in an uncut or untrimmed state. Employees who have been harassed, demoted, terminated, or otherwise discriminated against for their hair can now lodge a formal complaint with the Commission. The commission is able to impose a fine of up to $250,000 for hair discrimination.
At The Harman Firm, we believe that every employee has the right to wear natural hair styles. If you think you’ve been discriminated against based on wearing a natural hair style, contact The Harman Firm, LLP.