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EMPLOYER’S DISCRIMINATORY APPEARANCE CODE MAKES WORKER’S HAIR STAND ON END

QUESTION:  Our company recently announced a new “Appearance Code,” which not only limits what people can wear, but how we style our hair. Men are forbidden to wear their hair in any length more than 2”, and both women and men are banned from wearing Afros, cornrows, twists or locs. The prohibition does not apply to “French braids” or chignons. I am a woman of color and usually wear my hair in locs – a style that works well for my hair type. It seems to me that the new Appearance Code is discriminatory since it bars styles worn primarily by people of color. Is there any law that protects people from discrimination based on hair styles?

ANSWER:     There is such a law, but – currently – it doesn’t exist in Michigan. This month California became the first state in the nation to pass legislation banning workplace and school discrimination against people of color for wearing styles like braids, Afros and locs, that work well with “natural” hair. New York City’s Commission on Human Rights went even further last winter when it released guidelines upholding the rights of New Yorkers to wear “natural hair, treated or untreated hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.” The guidelines allow the city commission to enforce penalties of up to $250,000 against employers who harass, threaten punish, demote or fire employees because of the texture or style of their hair.

            Michigan might be the next state to join the bandwagon and pass legislation treating work or school bans on specific hairstyles as a form of racial discrimination. House Bill No. 4811, introduced July 17, 2019 by Rep. Sarah Anthony, D-Lansing, would amend Michigan’s civil rights statute, the Elliott-Larsen Civil Rights Act (ELCRA), to expand the current ban on discrimination based on race to include discrimination based on “traits historically associated with race, including, but not limited to, hair texture and protective hair styles.” ELCRA currently bans discrimination in employment, housing, public service, public accommodations and educational facilities on the basis of religion, race, color, national origin, age, sex, height, weight, familial status, or marital status.”

            But the bill could have a while before it gets to a vote: It was referred to the House Government Operations Committee. Some bills never make it out of committee review; those that do must still be passed by the full House, the Senate, and be signed by the governor before they become law. Other efforts to amend ELCRA, especially repeated attempts to add protections for LGBT people, have not met with success.

            Courts interpreting ELCRA and its federal counterpart, Title VII of the Civil Rights of 1965, have been unwilling to interfere with an employer’s dress codes – even those requiring women to wear dresses, full makeup and certain hair styles. Workplace rules that infringe on traits “culturally associated with race” or ethnicity receive short shrift. Three years ago, the U.S. Court of Appeals for the Eleventh Circuit – which handles cases from Alabama, Florida and Georgia — ruled an employer had not discriminated against an African American woman when it rescinded a job offer because the woman wore her hair in locs. The U.S. Supreme Court turned down a request by the NAACP Legal Defense Fund, to appeal the dismissal of the woman’s claim; so the decision of the Eleventh stands. The NAACP had argued, inter alia, that the Eleventh Circuit had failed to recognize the “unique burdens that grooming policies [like those of the employer] impose on Black people.” The group noted that to comply with rules favoring styles more often worn by people of European descent, African Americans must “dedicate substantial time and financial resources to pay for harsh and damaging treatments to straighten their hair, or wear wigs, hair pieces, or extensions to simulate white hair texture.”

The bottom line is that you are not currently protected from rules that require you to wear styles that may not work well for your hair type, but the tide seems to be turning in favor of such protections. While the Eleventh Circuit – which is traditionally conservative — has ruled, there are 12 other Courts of Appeals in the United States (not to mention hundreds of state courts), many of which might view with favor the argument that dismissing an employee based on a hairstyle associated with race or culture is a form of racial or ethnic discrimination. Employers should have a strong reason for banning hairstyles that are associated particularly with one racial group.

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