New York is 2nd state to ban racial discrimination against natural hair

by Kim Boateng Posted on July 16th, 2019

Albany: New York became the second state to ban discrimination based on natural hairstyles after Gov. Andrew Cuomo signed a bill Friday amending the state’s Human Rights Law.

The measure, which also amends the Dignity for All Students Act, updates the definition of race used in existing law, adding “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”

“For much of our nation’s history, people of color — particularly women — have been marginalized and discriminated against simply because of their hair style or texture,” Cuomo said in a statement Friday. “By signing this bill into law, we are taking an important step toward correcting that history and ensuring people of color are protected from all forms of discrimination.”

The bill’s provisions are effective immediately. The New York City Commission on Human Rights issued new guidance in February that banned discrimination on the basis of hair or hairstyle in workplaces, schools and public places.

New York joined California, which earlier this month became the first state to outlaw racial discrimination based on hairstyle, such as braids, Bantu knots, twists and locs.

The California measure, known as the Crown Act — an acronym for “Create a Respectful and Open Workplace for Natural Hair” — passed unanimously in both the California Assembly and Senate and takes effect Jan. 1. It adds traits historically associated with race to the state’s list of classifications protected from discrimination, including race, sex, religion, color, national origin, disability and sexual orientation.

Civil rights advocates say both the California and New York laws will prohibit grooming policies that place undue burden on people of color, particularly black people.

“Policies and practices that target, profile, or single out people for natural hair styles in public places —like in the workplace, in schools, and even at the airport — disproportionately burden black people,” Patricia Okonta, a legal fellow at the NAACP Legal Defense and Educational Fund, told reporters on Monday.

“At a time where there is a proliferation of people, particularly black women, embracing their natural textures and styles, it is significant that New York lawmakers are working to ensure equal access to resources and opportunities regardless of race or hair texture,” Okonta said.

New York Assemblywoman Tremaine S. Wright, who co-sponsored the bill, has worn her hair natural for 17 years. She said in a statement the bill is deeply personal and is one she is proud of.

Assembly Speaker Carl Heastie said discriminatory hair policies sideline people of color.

“No one should face discrimination at school or in the workplace, but too often we see people of color, particularly women, who are told their hair is unprofessional or not appropriate in public settings,” Heastie said. “These discriminatory policies sideline people of color⁠ — keeping children out of their classrooms and diminishing who they are.”

Rules on natural hair at school and work gained renewed interest in December, when a black high school wrestler in New Jersey was told by a referee that he had to cut off his dreadlocks or forfeit a wrestling match. The incident was caught on video and went viral.

California’s governor cited the video as a clear example of the discrimination black Americans face.

“That is played out in workplaces, it’s played out in schools — not just athletic competitions and settings — every single day all across America in ways subtle and overt,” Newsom said before signing the bill at the Capitol in Sacramento on July 3.

How the US courts have defined race

The central issue in the case revolves around two significant questions: What is race, and what is racial discrimination?

The federal courts have generally considered race as a set of “immutable” traits shared by a group of people, hereditary characteristics that a person cannot change — such as skin color, hair texture, and facial features. The thing is, federal courts don’t generally consider bans on natural hairstyles as a form of discrimination based on natural hair texture.

This definition is important because it determines how the courts decide what is racial discrimination under Title VII of the Civil Rights Act, which prohibits employers from limiting job opportunities to workers “because of such individual’s race, color, religion, sex, or national origin.”

The 11th Circuit justices said they consulted dictionary definitions for “race” from the 1960s, when the Civil Rights Act was signed into law:

Although the period dictionaries did not use the word “immutable” to describe such common characteristics, it is not much of a linguistic stretch to think that such characteristics are a matter of birth, and not culture.

The Alabama district court dismissed Jones’s lawsuit based on the argument that dreadlocks are not an “immutable trait” that Jones can’t change. By that logic, a company policy that bans dreadlocks cannot be a form of intentional discrimination. They cited the 1981 case of Rogers v. American Airlines, in which a New York district judge ruled that the airline did not discriminate against a black flight attendant when her supervisor said her braided cornrows violated the company’s grooming policy. The Alabama appellate court agreed with that view.

The NAACP Legal Defense Fund and the EEOC argue that those rulings rest on outdated notions of what race is and what racial discrimination looks like.

Discrimination is now more subtle and harder to detect

Lawyers for the EEOC say that race is more than a person’s biological traits, and that a growing body of research shows that race is also a social construct based on shared culture, history and identity. According to this argument, dreadlocks are so closely associated with black America that any company policy banning them is a race-based policy.

But Jones’s lawyers main dispute is over the HR manager’s reason for banning locs — because they “tend to get messy” — which hinges on a racial stereotype that intentionally harms black workers. The lawyers note:

Locs are often the target of scorn and derision based on long-held stereotypes that natural Black hair is dirty, unprofessional, or unkempt. Indeed, the term “dreadlocks” originated from slave traders’ descriptions of Africans’ hair that had naturally formed into locs during the Middle Passage as “dreadful.”

The stereotype that Black natural hairstyles are dirty or unkempt and therefore not appropriate for more formal settings remains unfortunately widespread. For example, until 2014, the U.S. military banned a number of common Black hairstyles, including cornrows and braids. School administrators and dress codes also often restrict Black natural hairstyles.

Lawyers with the NAACP Legal Defense Fund said that modern-day racial discrimination is not as overt as it was 40 years ago, and that the courts need to recognize that.

“In an age where employment discrimination rarely presents itself in policies that explicitly exclude employees based on skin color, the vitality of Title VII depends on its ability to root out more subtle practices — facially neutral policies, racial proxies, stereotyped thinking — that still operate to disfavor applicants based on their race,” the lawyers wrote in their petition.

Research shows persistent biases toward black women with natural hair. In one implicit bias test, white women showed the strongest bias — both explicit and implicit — against textured hair, rating it as less beautiful and less professional than smooth hair.

The NAACP Legal Defense Fund also argues that the 11th Circuit is ignoring precedent set by the Supreme Court in its 1989 ruling in Price Waterhouse v. Hopkins. In that case, a female lawyer said her supervisors repeatedly told her she was too aggressive and needed to walk, talk, and dress more “femininely” if she wanted to get a promotion.

The Court ruled that gender stereotypes about how women should dress at work can be a form of intentional sex discrimination under Title VII of the Civil Rights Act, even though femininity is mutable. Jones’s lawyers say that legal standard should also apply to racial discrimination claims, and that denying someone a job based on a racial stereotype can also be a form of discrimination. In Jones’s case, the stereotype is that natural black hair is unprofessional and messy.

Even though the Supreme Court didn’t take up the case, cities and states are starting to analyze their own anti-discrimination laws.

In February 2018, New York City outlawed discrimination against black hair, including cornrows and Bantu knots. The law protects against bias in public spaces from restaurants and nightclubs in addition to schools and workplaces.

Image: Rep. Ayanna Pressley (D-MA) wears her hair in twists.

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