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NJ Division on Civil Rights Issues Guidance on Illegal Discrimination Based on Hair

In September 2019, the New Jersey Division of Rights (“DCR”) issued enforcement guidance (“Guidance”) clarifying and explaining how the DCR applies the state’s Law Against Discrimination (“LAD”) to discrimination based on hairstyles, particularly with respect to those “closely associated with Black people.”  The Guidance states that the LAD’s prohibition on discrimination based on race encompasses discrimination that is ostensibly based on hairstyles that are inextricably intertwined with or closely associated with race and therefore prohibits employers from refusing to hire or otherwise treating “a Black person differently because they wear their hair in a style that is closely associated with being Black.”

Moreover, singling out such a hairstyle will be deemed to constitute direct evidence of disparate treatment and discrimination on the basis of race in violation of the LAD.

The Guidance also applies to “discrimination based on hairstyles that are inextricably intertwined with or closely associated with other protected characteristics, such as hairstyles associated with a particular religion,” e.g., payot (sidelocks) worn by Orthodox Jewish men and Sikh persons who wear uncut hair.

The Guidance directs that employers may not:

  • “enforce grooming or appearance policies that ban, limit, or restrict hair styled into twists, braids, cornrows, Afros, locs, Bantu knots, fades, or other hairstyles closely  associated with Black racial, cultural and ethnic identity;”

  • Selectively enforce facially neutral grooming policies – such as requirements to maintain a “professional” appearance; for example, Black employees with shoulder length hair or braids cannot be told to change their hairstyle, if white employees with long hair are permitted to maintain their hairstyles; or

  • “justify policies that explicitly or in practice, ban, limit, or restrict natural hair or hairstyles associated with Black people based on a desire to project a certain ‘corporate image,” because of concerns about ‘customer preference’ or customer complaints, or because of speculative health or safety concerns.”

According to the Guidance, any health and safety justification must “be rooted in objective, factual evidence – not generalized assumptions – that the hairstyle in question would actually present a materially enhanced risk of harm to the wearer or to others.”  Moreover, the guidance requires employers to consider whether a legitimate health or safety risk can be eliminated or reduced by reasonable alternatives, such as hair ties, hairnets, or other head covering, to banning or restricting a hairstyle.

The Guidance largely tracks enforcement guidance issued earlier this year by the New York City Human Rights Commission and follows the enactment of legislation in California and New York State amending their civil rights and education laws to add “traits historically associated with race, including but not limited to hair texture and protective hairstyles” to the statutory definitions of race.  Similar legislation has been proposed in the New Jersey legislature, but has not been enacted.

Although the Guidance is not statutory and reflects only the DCR’s interpretation of the LAD, given recent trends and the deference afforded to administrative pronouncements, New Jersey employers should review their workplace grooming and appearance policies to ensure compliance with the newly issued legal enforcement guidance.

©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume IX, Number 274

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About this Author

Maxine Neuhauser, EpsteinBeckerGreen, Life Science, Employment, Health Care
Member

MAXINE NEUHAUSER is a Member of the Firm in the Labor and Employment and Health Care and Life Sciences practices, in the Newark office of Epstein Becker Green. Her practice focuses on litigation and providing strategic advice and counsel to regional, national, and international corporations, in multiple areas of law, including labor and employment, intellectual property and non-competes, and health. Ms. Neuhauser has represented clients in numerous, diverse industries, including financial services, aviation, managed care, life sciences, and retail. She also represents...

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