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An Increasingly Hairy Situation: Discriminatory Employment Decisions Based on Hairstyles

Hairstyles are gaining more attention in the labor and employment context. Earlier this year, Austria’s Supreme Court allowed a former employee to reopen his discrimination claim upon discovering evidence that the employer may be engaging in discriminatory conduct by imposing hairstyle-related requirements on employees. In 9 ObA 4/19g, a staffing agency’s employee was denied a position on account of his long hair, and sued the staffing agency for sex discrimination under the Equal Treatment Act, which prohibits differing treatment on the basis of sex without an objective justification. The employee lost the initial suit but successfully revived the claim upon discovering that the staffing agency’s handbook prescribed the manner in which both males and females were to wear their hair, including requiring that males keep their hair short. The Supreme Court confirmed the lower courts’ rulings to reopen the case, finding that the handbook could shed “new light” on the initial legal assessment. The employer will likely have to change its policy in order to avoid further claims in the future.

In the United States, New York and California are leading the fight against discriminatory decisions based on hairstyle. As we previously reported, the New York City Commission on Human Rights (“NYCCHR”) recently issued enforcement guidance on race discrimination on the basis of hair with regard to employer policies that restrict or ban certain hairstyles commonly associated with “communities of color, religious minorities, and other communities,” and stating that the City’s Human Rights Law “protects the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic or cultural identities.” We also recently reported that proposed legislation in California seeks to amend the State’s education and government laws to define “race or ethnicity” to include certain hairstyles and hair texture. The preamble to the proposed legislation notes that “hair today remains a proxy for race.”

We suspect that an increasing number of jurisdictions, both in the United States and abroad, will turn their attention to protecting individuals against discriminatory action on the basis of their hairstyle. Employers should note these early developments and carefully evaluate their appearance and/or grooming policies, and decisions based on those policies. We will continue to monitor this trend.

© 2019 Proskauer Rose LLP.

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About this Author

Erika C Collins, Labor, Employment, Attorney, Proskauer Rose, LAw Firm
Partner

Erika Collins is a Partner in the Labor & Employment Law Department and co-head of the International Labor & Employment Law Group, resident in the New York office. Erika advises and counsels multinational public and private companies on a wide range of cross-border employment and human resources matters throughout the Americas, Europe, Africa and Asia.

212-969-3555
Daniel Ornstein, Litigation Attorney, Proskauer Law FIrm
Partner

Dan Ornstein leads our London labor and employment team and is a co-head of our International Labor & Employment Group. He has over 15 years of experience dealing with a broad range of UK and international employment issues. Dan is a go-to advisor for clients who rely on his sophisticated advice both on day-to-day matters and high-stakes situations. Dan is ranked in Chambers UK, which describes him as "incredibly analytical", "incredibly intelligent and an excellent sounding board” and someone who “displays both empathy and an assured knowledge of the best way to treat cases." He is also recognized in Legal 500 UK and International Who's Who of Management Labour & Employment Lawyers.

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Vanessa Avello, Proskauer Law Firm, Labor and Employment Law Attorney, Newark
Associate

Vanessa P. Avello is an associate in the Labor & Employment Department and assists clients in a broad range of labor and employment law matters.

Prior to joining Proskauer, Vanessa attended Rutgers School of Law where she served as a Senior Notes and Comments Editor of the Rutgers Law Review. Vanessa was also a Teaching Assistant for the Rutgers Legal Analysis, Writing and Research Skills program and she held a judicial internship for the Honorable Esther Salas of the U.S. District Court for the District of New Jersey. In addition,...

973-274-3232