Tuesday Talk*: Hair, The New Frontier For Discrimination

What difference does hair make? A lot if you’re black. Part of it is nature and genetics, and part of it is style. And it could now mean a very expensive haircut if your employees are black and your business is in New York City.

Today, the New York City Commission on Human Rights releases legal guidance on our protections and enforcement actions against racial discrimination on the basis natural hair and hairstyles: https://t.co/ofDAttCZbQ #YourHairYourRightNYC pic.twitter.com/24MocBzk9Z

— NYC Human Rights (@NYCCHR) February 18, 2019

Hair, like any other aspect of one’s personal attire and grooming, speaks to who you are, and so many people choose their hairstyle to express their individuality. What does an employer care? Well, for some, it speaks to professionalism, much as wearing a suit rather than jeans conveys a message to customers or clients. But hair?

Anti-Black racism is an invidious and persistent form of discrimination across the nation and in New York City. Anti-Black racism can be explicit and implicit, individual and structural, and it can manifest through entrenched stereotypes and biases, conscious and unconscious. Anti-Black bias also includes discrimination based on characteristics and cultural practices associated with being Black, including prohibitions on natural hair or hairstyles most closely associated with Black people. Bans or restrictions on natural hair or hairstyles associated with Black people are often rooted in white standards of appearance and perpetuate racist stereotypes that Black hairstyles are unprofessional.

And therein the problem arises. This isn’t about hair, but black hair. This isn’t some tacit understanding, but about as flagrant as it comes. An employer cannot discriminate on the basis of hair choices by black employees.

The guidelines, obtained by The New York Times before their public release, are believed to be the first of their kind in the country. They are based on the argument that hair is inherent to one’s race (and can be closely associated with “racial, ethnic, or cultural identities”) and is therefore protected under the city’s human rights laws, which outlaw discrimination on the basis of race, gender, national origin, religion and other protected classes.

In some respects, hair is a product of genetics. But what one does beyond that is a matter of personal choice, and what could be wrong about choosing hairstyles that are traditionally associated with “racial, ethnic, or cultural identities”? You don’t like the way Bantu knots look? Maybe she doesn’t like your pompadour. So what?

To date, there is no legal precedent in federal court for the protection of hair. Indeed, last spring the United States Supreme Court refused an NAACP Legal Defense and Educational Fund request to review a case in which a black woman, Chastity Jones, had her job offer rescinded in 2010 at an Alabama insurance company after she refused to cut off her dreadlocks.

Years ago, there was an Irish guy who sold weed in the south Bronx along with some of his pals, who were black and Dominican, who wore dreadlocks. His nickname was the “Fakin’ Jamaican,” and we all used to laugh about it. Of course, cultural appropriation had yet to be a thing back then, so nobody punched him for it.

What makes this law stand out isn’t the it protects bias against traditionally black hairstyles, but that it removes hair from an employer’s prerogative about the appearance of staff, and consequently the impression the business gives to its customers.

“There’s nothing keeping us from calling out these policies prohibiting natural hair or hairstyles most closely associated with black people,” said Carmelyn P. Malalis, the commissioner and chairwoman of the New York City Commission on Human Rights.

“They are based on racist standards of appearance,” Ms. Malalis continued, saying that they perpetuate “racist stereotypes that say black hairstyles are unprofessional or improper.”

In many instances, that seems fairly obvious. In others, less so. It’s not hard to imagine jobs where hair matters, such as food service, or where it doesn’t, such as most jobs. And in the scheme of an employer preferring to convey his version of “professionalism” to his customers, why shoud dreads be wrong? Sure, some customers might be put off, but catering to the whims of the prejudiced isn’t a justification for being prejudiced. And then again, other customers might not only find it perfectly fine, but might prefer to do business with a person in dreadlocks.

But the breadth of this law is, well, breathtaking. An employer can dictate that hair be kept neat and trimmed for some employees but not other based explicitly on race. And if hair choices are based on “racist standards of apperarance,” aren’t clothing as well? In fact, isn’t the entire concern of an employer as to the appearance of staff a matter of prejudice, the employer’s bias about good and bad appearance? Is hair discrimination the next logical step, or is it a step too far?

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Tuesday Talk*: Hair, The New Frontier For Discrimination curated from Simple Justice