In the last days of 2019, New Jersey Governor Phil Murphy signed a law that bans employers from discriminating against employees based on hairstyles that are associated with race. In doing so, New Jersey joined New York and California—both of which enacted similar legislation earlier in 2019—in prohibiting hair discrimination in the workplace.
These new laws are particularly focused on protecting black employees and providing them the right to wear hairstyles often associated with their race, such as cornrows, braids, and afros. Accordingly, any dress and grooming policies which specifically prohibit these types of hairstyles would be unlawful in California, New York, and New Jersey. In addition to work rules that specifically outlaw certain types of hairstyles, any facially neutral policies that are applied in a discriminatory manner would similarly be unlawful. For example, if an employer had a policy which banned the use of hair extensions, but only enforced it against its black employees, the rule would be unlawful.
Some have questioned the necessity of such laws given that Title VII prohibits discrimination based on race. However, the consensus among the courts is that hairstyles are not protected by prohibitions on discrimination based on race or other protected characteristics, with the reasoning being that prohibition on discrimination based on these protected characteristics only applies to immutable characteristics, and since hair and hairstyles can be changed, they are not immutable.
In addition to revising policies which specifically prohibit these types of hairstyles, employers in New York, California, and New Jersey should also ensure that they are not enforcing their otherwise lawful grooming policies in a discriminatory way. For example, if an employer has a policy that requires employees to present themselves in a “professional manner,” but uses that policy to discriminate against certain hairstyles, that employer would likely be liable under these new statutes.
Finally, for companies outside of California, New York, and New Jersey, these new laws are a good reminder for employers to revisit their dress and grooming policies. Many employers’ dress and grooming policies contain language that subject them to hidden liability under federal, state, and local anti-discrimination laws.