New Jersey Next State to Take Action on Discrimination Based on Hair
Following on the heels of a much publicized incident in high school athletics, the New Jersey Division of Rights ("DCR") issued enforcement guidance ("Guidance") clarifying and explaining discrimination based on hairstyles, "with a particular focus on hairstyles closely associated with Black people." The Guidance follows an incident where a high school African-American wrestler was told by a referee that he must choose between cutting his dreadlocks or forfeiting the match. According to the DCR the New Jersey Law Against Discrimination’s ("LAD") "prohibition on discrimination based on race encompasses discrimination that is ostensibly based on hairstyles that are inextricably intertwined with or closely associated with race." Although the Guidance is not mandatory, employers should be aware of DCR’s position on this issue.
The Guidance explains that the LAD generally prohibits employers, housing providers and places of public accommodation, including schools, in New Jersey from enforcing grooming or appearance policies that ban, limit, or restrict hairstyles closely associated with Black people, including twists, braids, cornrows, Afros, locs, Bantu knots, and fades. It 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.
The Guidance states 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;"
- discriminatorily apply or selectively enforce facially neutral hair-related policies – such as requirements to maintain a "professional" or "tidy" appearance – against Black people; for example, employers may not prohibit Black employees with shoulder-length locs or braids to maintain their hairstyles while allowing white employees with shoulder-length hair 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."
Any legitimate health and safety justification needs to 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. DCR’s Guidance largely follows enforcement guidance issued by New York City Commission on Human Rights in February 2019.
In July 2019, California and York both amended their civil rights and education laws to clarify that race includes traits historically associated with race, including "hair texture and protective hairstyles." We discussed New York’s new law here. A similar bill is pending before the New Jersey legislature, but has not been enacted.
Even though the Guidance is not mandatory and only the DCR’s interpretation of the existing New Jersey Law Against Discrimination, New Jersey employers should review their workplace appearance and grooming policies to ensure compliance. This includes ensuring that appearance and grooming policies are both facially neutral and are not selectively enforced.