14 Oct Time to Reconsider Your Grooming Policies

Hairstyles are generally a socially acceptable means of personal expression, and for some, the decision may be dependent on maintaining a meaningful connection to their culture. Recently, hair discrimination has gained national attention due to the introduction of the CROWN Act, which stands for Creating a Respectful and Open World for Natural Hair. While some hair discrimination can be overt, such as through harmful verbal comments, a less obvious and more pervasive form of hair discrimination may come from employers’ documented grooming policies. The challenge for courts, which state legislatures are promptly addressing through their own legislation, is how – if at all – to legally link hairstyle to the existing protected classes.  

The law has generally limited the concept of discrimination to immutable characteristics, or characteristics of an individual that are innate and incapable of being changed. Hairstyle and hair texture, however, are unique considerations in that they may be altered to an extent, but the choices are generally limited depending on hair type or the choice may be tied to cultural reasons. Accordingly, most courts have struggled and consequently denied these claims, choosing instead to adhere to the immutable characteristics test. These courts have rejected the EEOC’s explicit guidance in its manuals that actions directed towards an employee’s hair can be a basis upon which to find employment discrimination, reasoning that the EEOC’s guidance is not binding law. Other courts deny hair discrimination claims in favor of employers where the grooming policies have some legitimate business purpose, such as for safety reasons. The inaction of some courts, however, does not eliminate the fact that even facially neutral grooming policies may have a disproportionate effect on employees. While there may be legitimate reasons why an employer may need to restrict grooming practices, in some cases, unintended consequences flow and outdated grooming policies may be leveraged against the employer as an excuse.

Whether or not employers are ready to revisit their grooming policies, several states have already passed or are considering passing legislation that addresses hair discrimination. In July 2019, California became the first state to pass a bill that prohibits discrimination against certain hairstyles associated with race. California’s CROWN Act went into effect in January 2020, and it applies to both public employers and private employers with five or more employees. The law prohibits grooming policies that prohibit natural hair including afros, braids, twists, and locks, noting that these types of policies have a disparate impact on Black applicants and employees. New York and New Jersey quickly followed suit, both enacting their own versions of the CROWN Act by the end of 2019. Since California has taken the first step, thirteen other states have passed similar versions of the CROWN Act. Moreover, even where CROWN Act legislation has failed, not been filed, or is currently pending, several cities and counties have already enacted the law including Dane County, Wisconsin.

The advent of laws surrounding hair discrimination may open the door to other legal challenges regarding employee personal expressions which may be irrelevant to legitimate business purposes. Accordingly, employers should consider revisiting their grooming policies to avoid costly legal challenges that may arise in the near future. All such policies should be directly linked to published job descriptions

 

This article is a publication of MWH Law Group LLP and is intended to provide general information regarding legal issues and developments to our clients and other friends. It should not be construed as legal advice or a legal opinion on any specific facts or situations. For further information on your own situation, we encourage you to contact the author of the article or any other member of the firm.

© MWH Law Group LLP 2021. All rights reserved.

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Melissa Rubio
Legal Intern |  Law Clerk, Milwaukee

735 N. Water Street, Suite 610
Milwaukee, WI 53202
P: (414) 509-7489 / F: (414) 436-0354
E: melissa.rubio@mwhlawgroup.com



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