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New York City Proposes Rule to Clarify That, in Addition to Race, “Hair Discrimination” Could Implicate Religion and Creed … and Maybe Gender, Age, and Other Protected Classes

As we previously reported, in 2019, the New York City Commission on Human Rights (“Commission”) provided legal enforcement guidance (“Enforcement Guidance”) advising that workplace grooming and appearance policies “that ban, limit, or otherwise restrict natural hair or hairstyles” are a form of race discrimination under the New York City Human Rights Law (“NYCHRL”). Now, the Commission is proposing to amend its rules (“Proposed Rule”) to formalize the Enforcement Guidance. The Proposed Rule states that discrimination based on hair “can function as a proxy for discrimination” based on race, creed, or religion and “constitute a form of unlawful stereotyping.” Of note, in its “Statement of Basis and Purpose of Proposed Rule,” the Commission further suggests that “claims for hair-based discrimination on the basis of disability, gender, age or other protected status” under the NYCHRL may be viable as well.

Employers and other interested parties may submit comments on the Proposed Rule until October 15, 2020, on which date the Commission will hold an online public hearing via Webex on the Proposed Rule.

The Proposed Rule would ban a grooming policy that “restricts or prohibits hair texture, hairstyles, including the use of head coverings, or hair length” associated with a racial group or ethnic group or “associated with an individual’s religious beliefs, observance, or practice.” In addition, the Proposed Rule forbids disparate (i.e., unequal) treatment, including harassment, based on hair style, length, or texture, and requires employers to seek an accommodation when the policy or practice infringes on an employee’s sincerely-held religious beliefs or practices.

The Proposed Rule provides a limited exception for an employer’s hair-related grooming or appearance policy or practice that is justified by “a legitimate health or safety concern.” The Commission, however, warns that a claim of “customer preference” or “a perception that a person’s hair is ‘unprofessional,’ a ‘distraction,’ or inconsistent with a covered entity’s image” is not a health or safety concern. Further, “[s]peculative health or safety concerns may not be used as a pretext for racial discrimination.” In determining whether a restriction or prohibition constitutes pretext for discrimination or is based on legitimate health or safety concerns, the Commission will consider the following factors, among others:

  • “the nature of” the asserted health or safety concern;

  • whether the employer’s policy or practice is “narrowly tailored” to address the concern;

  • assuming the restriction or prohibition addresses a legitimate health or safety concern, whether less restrictive alternatives are available to address that concern, such as the use of hair nets or ties, other head coverings and “alternative safety equipment;”

    • where the policy or practice implicates a sincerely-held religious belief or practice, the employer must engage in a cooperative dialogue to determine if a reasonable accommodation that would not cause undue hardship is available; and

  • whether the policy or practice “has been applied in a discriminatory manner.”

The proposal includes examples of what would constitute violations, including:

  • An employer’s appearance and grooming policy prohibiting twists, locs, braids, cornrows, Afros, Bantu knots, or fades, which are commonly associated with Black people, or requiring employees to change their hair to conform to the company’s appearance standards, including having to straighten or relax hair;

  • A supervisor telling a Black employee that she cannot be promoted unless she straightens her natural hair;

  • Co-workers taunting an Afro-Caribbean woman as being “unkempt” and “dirty” because she wears her hair in cornrows, and the employer failing to intervene to stop the harassment;

  • Requiring a Native American employee to cut his long, braided hair, which he wears as part of his Navajo identity, or risk losing his job;

  • Denying a Black employee with locs the opportunity to work in a customer-facing role unless he changes his hairstyle or hides his locs;

  • Ordering an employee to restrict, change, or conceal their hairstyle or facial hair, in violation of their religious beliefs, to remain in a public-facing position;

  • Refusing to hire a Black applicant with box braids because her hairstyle does not fit the image the employer is trying to project; and

  • Refusing to retain an employee who converts to or adopts a different faith and begins to wear religious headwear, such as a turban, hijab, or yarmulke, to partly cover or completely cover their hair.

The Proposed Rule would require reasonable accommodations in employment for religious hair textures, hairstyles and hair length. The proposal provides that, after engaging in the cooperative dialogue, an employer may refuse to provide an accommodation if doing so would cause the employer to suffer undue hardship. To meet this standard, however, the employer must show that the accommodation would constitute “a significant difficulty or expense to the employer, which includes an assessment of the identifiable cost of the accommodation, including costs of loss of productivity.” The Proposed Rule expressly states that an employer “may not deny a religious accommodation for a particular hairstyle because of: customer preference; concerns that these styles are a distraction or unprofessional; concerns about company image or reputation; trivial or minor losses of efficiency; or speculative health or safety concerns.” The employer must pay the cost for any accommodation granted, unless doing so would “impose significant difficulty or expense;” and even in that case, the employer still “may not deny an employee the accommodation before offering the employee the option to share the cost, and if still an undue hardship to the employer, to cover the cost of the accommodation themselves.”

Anyone who wishes to comment on the Proposed Rule may do so using one of the following methods:

  • Submit comments to the Commission through the New York City rules website at http://rules.cityofnewyork.us.

  • Email comments to policy@cchr.nyc.gov. (Include a reference in the subject line to “Proposed Rules on Discrimination Based on Hair.”)

  • Mail comments to Office of the Chair, New York City Commission on Human Rights, 22 Reade Street, New York, New York 10007.

  • Fax comments to Zoey Chenitz, Senior Policy Counsel, (646) 500-7330.

  • Speak at the public hearing (for three minutes) by signing up via email to policy@cchr.nyc.gov or sign up during the online hearing on October 15, 2020.

A few days after the hearing, the Commission will post on its website copies of all comments submitted online and all written comments, as well as a summary of the hearing.

©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume X, Number 223

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About this Author

Nancy Gunzenhauser, Labor Employment Attorney, Epstein Becker Law Firm
Associate

NANCY L. GUNZENHAUSER is an Associate in the Labor and Employment practice, in the New York office of Epstein Becker Green.

Ms. Gunzenhauser:

  • Counsels clients on compliance with EEO laws, the Americans with Disabilities Act, the Family and Medical Leave Act, worker classification issues, and other federal, state, and local statutes governing the workplace
  • Advises employers in all facets of the employment relationship, from pre-employment considerations and hiring to terminations and post...
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