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Hair Discrimination – Does Your “Professional Dress and Hygiene” Policy Make the Cut? | Husch Blackwell LLP

While many employers maintain “Professional Dress and Hygiene” policies in their Employee Handbooks – or as stand-alone policies – managers, supervisors, and human resources personnel are rarely trained on how to implement those policies. The common result is, unfortunately, that these policies are applied unfairly or more strictly toward Black and other racially diverse employees. Very seldom do we see policies that specifically prohibit braids, dreads, locks, twists, or knots anymore. Instead, these policies often state that employee hairstyles must be “professional” (very helpful), “neat,” and well-managed,” for example. Keeping your policy language broad can be helpful by giving your managers, supervisors, and HR personnel deference, but it can also result in disparate treatment if the decision-maker has conscious or unconscious biases about what is viewed as “professional” and make determinations under the policy relying on those unfair biases.

Thus, employers must be careful not to step over the line from appearance regulation to unlawful discrimination. Keeping abreast of legal developments on appearance and hair discrimination can help guide employers drafting and implementing professionalism policies.

Recent Developments

Until recently, there were no protections for natural Black hairstyles, such as braids, twists, locks, and knots. California was the first state to pass the CROWN Act in 2019, which stands for Creating a Respectful and Open World for Natural Hair. The Act changed the state’s definition of race in its anti-discrimination laws to include “traits historically associated with race, including but not limited to, hair texture and protective hairstyles.” “Protective hairstyles” is defined as “such hairstyles as braids, locks and twists.” The Act acknowledges that hair often acts as a stand-in for race, so when textured hair is policed ​​more strictly through regulations of style or length, race is being targeted as well. The push to end hair discrimination has been gaining traction, energized after the film Hair Love won Best Animated Short Film at the 2020 Academy Awards. Though the CROWN Act predates the film, its award win prompted many more advocates and legislators to champion legislation like the CROWN Act.

Currently, 15 states, including California, Colorado, Connecticut, Delaware, Maine, Maryland, Nebraska, Nevada, New Jersey, New Mexico, New York, Oregon, Tennessee, Virginia, Washington, and the territory of the United States Virgin Islands have passed CROWN Acts. Numerous counties and municipalities have also passed the Act. Similar legislation has been proposed in more than 20 other states as well. For example, the legislatures in Illinois, Alaska, and Louisiana have passed versions of the CROWN Act in 2022, and the bills have been sent to their respective Governors for signature before enactment. At the federal level, the House of Representatives passed the CROWN Act on March 18, 2022, but it has not yet been voted on in the Senate.

Suggestions for Employers

Workplace policies regarding dress and appearance have varying levels of necessity depending on the work environment. Therefore, employers should consider whether such a policy is even necessary, or whether they can provide their employees with more leeway in their day-to-day attire and appearance. Where employers do wish to implement policies to regulate their employees’ dress or appearance, the changing legal landscape may make this process more confusing, and employers must be aware of how their policies fit within the changing landscape of antidiscrimination law. Below, we have provided a number of key considerations for employers implementing new “professionalism” policies or revising existing ones:

The enforcement of the policy. Black women are 30% more likely to receive direct communication about a general appearance policy. Black women are also 80% more likely to change their natural hair to meet societal norms or expectations at work. If that weren’t telling enough, Black women are also 1½ times more likely to be sent home or know of a Black woman who was sent home from the workplace because of her hair. As such, employers should avoid wielding facially neutral policies to target specific employees for their appearance. We recommend training your supervisory, managerial, and HR personnel on proper administration of these policies, and ensuring that all employees are aware of, and have read, the policy.

The specificity of the policy language. There is a fine line to walk when crafting appearance policies. Employers should avoid vague language that could be implemented in a discriminatory fashion but should also refrain from overtly discriminatory language. For example, a policy requiring “no braids” might seem to apply to all employees with hair long enough to braid, but if the policy is only enforced against Black women and men who have their hair braided, it would amount to impermissible discrimination under the CROWN Acts. Vague policies requiring “neatness” or “tidiness” are also susceptible to the same kind of abuse—broad policies like these can easily lead to prohibited classification and discrimination based on racial or cultural affiliations. Before implementing appearance-based policies, employers should think about whether their employees might be targeted by a provision, or whether they are giving too much leeway to supervisors when deciding who a policy should apply to.

The “choice” an employee has. A policy prohibiting hot pink hair would prohibit an employee from making a choice about their appearance that cannot occur naturally. Natural hairstyles, however, are often the best way for people of color to protect and maintain their textured hair and express their identity and culture. When regulating an employee’s appearance, employers should be careful to craft policies that do n’t interfere with an employee’s naturally occurring attributes or the best practices the employee can take to maintain their natural attributes.

Other applicable laws. Employers may also have obligations to accommodate employees’ hairstyles under federal, state, and local laws. For example, under federal law, employers with more than 15 employees must provide reasonable accommodations for employees’ sincerely held religious beliefs, unless it would result in undue hardship on the employer. So, if you have a policy limiting the length of employee hair, including beards, for example, you may need to make an exception for an employee whose religion prohibits them from cutting their hair.

The Labor and Employment team wishes to gratefully acknowledge the significant contribution of Paige Sprink, a summer associate.

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