United States: No Splitting Hairs About It: New York City Issues Guidance Banning Hair Discrimination

Seyfarth Synopsis: New York City recently released guidance that ensures that all New Yorkers, with an emphasis on black people, have a right to wear their "natural hair, treated or untreated hairstyles such as locs, cornrows, braids, Bantu knots, fades, Afros and/or the right to keep their hair in an uncut or untrimmed state" without fear of reprisal. A copy of the guidance can be found here.

Overview of What the Guidance Does and Does Not Represent

The guidance is noteworthy as a road map for how the New York City Commission on Human Rights (the "City Commission") will, as part of its investigatory and adjudicatory authority, interpret whether an issue involving the hair of an employee or applicant is discriminatory under the New York City Human Rights Law ("NYCHRL"). The guidance is also noteworthy because no other agency, state or federal, or court has seemingly asserted such broad principles of protection for discrimination on the basis of hair.

On the other hand, the guidance is just that:  guidance. It is not a statute. Nor is it a regulation developed in accordance with rule-making requirements. Thus, while the City Commission will certainly follow the guidance, a court is free to defer or not to the guidance in whole or in part.

Guidance Specifics

The guidance explains how hair texture and hairstyles are connected deeply to black identity and therefore warrant protection as racial characteristics under the NYCHRL. Although the guidance focuses primarily on race-based discrimination for people who wear particular hairstyles because of their racial/ethnic identity, it notes that protections for hair-based discrimination extend to other areas such as discrimination based on religion, gender, age, and disability.

In connection with "grooming or appearance policies," the guidance forbids employers in New York City from banning natural hair or other hairstyles commonly associated with black people.  The guidance does not purport to invalidate facially neutral grooming or appearance policies that are very common among employers, but the guidance emphasizes how such policies may be discriminatory as applied. And while legitimate health and safety concerns remain legitimate justifications for an employer's application of grooming or appearance standards, the guidance states that the employer must address any concern before imposing a ban or restriction, such as by requiring the use of  hair ties, hair nets, head coverings or safety equipment that can accommodate various hairstyles and textures.

The following are examples the guidance describes as discriminatory:

  • A grooming policy prohibiting twists, locs, braids, cornrows, Afros, Bantu knots, or fades which are commonly associated with black people
  • A grooming policy requiring employees to alter their hair to conform to the company's appearance standards, including having to straighten or chemically relax hair
  • A grooming policy that bans hair that extends a certain number of inches from the scalp, thereby effectively prohibiting Afros
  • Applying facially neutral policies in a discriminatory manner, for example, banning the use of color/dyes, extensions, and/or patterned or shaved hairstyles against black employees only
  • Harassing and imposing unfair conditions on employees based on their appearance, such as forcing black people to obtain permission before changing their hairstyles; requiring only black people to alter or cut their hair or risk losing their job; telling a black person that he/she cannot be in a customer-facing role because of his/her hair; refusing to hire a black applicant because his/her hair does not fit a certain "image;" and mandating that black employees hide their hair under a hat or visor; and
  • Banning or limiting or otherwise restricting natural hair or hairstyles because they do not fit a certain corporate image because of customer preference or under the guise of a speculative health or safety concern.

Mutability of Hairstyles Irrelevant Under City Guidance, But Not Federal Law

While the guidance asserts that hair-based discrimination claims are gaining momentum across the country, there is no federal law that protects hairstyles and textures. In 2018, the United State Supreme Court declined to review a case brought on behalf of Chastity Jones, a black woman who had a job offer rescinded when she refused to change her locs. The Eleventh Circuit Court of Appeals held that racial discrimination has to be based on immutable characteristics, such as skin color, and that hairstyles do not qualify as immutable because they can be changed. This interpretation differs from the City's guidance, which directly links black hairstyles to racial/ethnic identity regardless of their mutable nature.

Employer Takeaways

Employers should not only ensure that their "grooming or appearance" policies are facially neutral, but also consider whether the application of these policies or other actions related to the hair of an applicant or employee might be deemed discriminatory in a specific instance. A court might be persuaded that the guidance is unworthy of deference on grounds such as that the NYCHRL does not protect against discrimination based on a mutable characteristic. But this is far from a certainty. Meanwhile the City Commission will certainly follow the guidance and has sweeping powers to investigate and adjudicate possibly through administrative hearings, as well as to impose civil penalties up to $250,000 for violations of the NYCHRL (with no cap on statutory damages) and require employers to amend their policies into compliance. Accordingly, most employers in New York City will want to strive for compliance with the guidance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions