I am an HR manager for a boutique beauty supply shop based in Atlanta, Georgia. We are planning to expand into new storefronts in both San Diego, California and Brooklyn, New York. We have a standard grooming policy because our company promotes personal care products and it is important to us that client-facing employees are clean and well-groomed. Our handbook restricts employees on the sales floor from wearing facial piercings, visible tattoos, long beards and dreadlocks. However, we’ve heard that new laws prohibit “hairstyle discrimination” and restrict dress codes. Can we still maintain our look?

—Perplexed Peach

Dear Perplexed,

Employers of all kinds have long implemented employee dress and grooming policies. The purpose and scope varies by industry and region, but companies with grooming policies generally seek to set “clean” or “professional” grooming standards for their employees. These facially neutral policies can sometimes have an unintended impact on some employees, however.  And increasingly across the country, grooming standards are being evaluated by courts and legislators for racial and religious bias. 

For example, several court cases have established that limits on head coverings at work may impermissibly discriminate on the basis of religion, and similar findings have been made about policies requiring men to be clean-shaven.¹ In Illinois, employers cannot require an employee to violate or abandon a “sincerely held practice” of the employee’s religion, such as by restricting the employee from wearing attire, clothing, or facial hair associated with religious requirements.²

New York—one of your company’s intended locations—enacted a similar law in August.³ And specific to your intended Brooklyn location, earlier this year the New York City Commission on Human Rights issued guidance warning that dress codes and grooming standards may be discriminatory where they ban or limit certain hairstyles or grooming practices associated with racial characteristics.

You also mentioned plans to expand to San Diego. On July 3, 2019, California became the first state to explicitly ban discrimination on the basis of hairstyles associated with race.⁴

To address your question, Perplexed, we need to take a closer look at how clothing, hairstyles, tattoos and piercings may be viewed under employment discrimination laws.

Religious Dress and Head Coverings

Let’s begin by considering protections for employees who adopt a certain style for religious reasons. Employers will have difficulty maintaining grooming or dress standards that impinge on sincerely held religious beliefs. Under Title VII of the Civil Rights Act of 1964, employers cannot restrict religious practice where a reasonable accommodation can be made without causing the employer an undue burden. For example, a business cannot categorically forbid an employee from—or refuse to hire an applicant on the basis of—wearing a head scarf, skull cap, or hijab for religious reasons, or seeking an accommodation to do so. Nor can employers make employees wearing religious clothing stay out of sight of customers, ask an employee to cover up articles of faith if it would violate the employee’s religious beliefs to do so, or require employees to dress in a way that would compromise their sincerely held religious beliefs.⁵  

Moreover, the U.S. Supreme Court has held that if an employer makes an adverse employment decision based in part on the perceived need to make a religious accommodation—whether that need is known or only suspected—that conduct is discriminatory under Title VII.  In that case, a job applicant applied for an interview while wearing a head scarf, which was not discussed during the interview. The interviewer told the store manager that she thought the applicant was wearing the scarf for religious reasons; the manager replied that employees were not permitted to wear hats at work, and the applicant was not hired.  The Court found that the employer’s knowledge of the applicant’s religious practice was sufficient to support a finding of intentional discrimination, even though the applicant had not requested any accommodation or even discussed her religious practice.

Employers should consider whether a given accommodation is possible, not look for ways to avoid making an accommodation. Employers should also consider the issue of undue burden only after evaluating possible accommodations. Further, employers should be extremely cautious about attempting to rely on actual or perceived “customer preference;” as the EEOC cautions, “customer preference about religious beliefs and practices is not a lawful basis for employment decisions.”⁶

State laws will also come into play. As noted earlier, on August 9, 2019, the State of New York enacted a law explicitly prohibiting employment discrimination on the basis of religious attire, religious clothing, and religious facial hair. 

On a practical level, hiring managers should clearly identify any scheduling or dress code elements that are required for a given job, along with other essential functions of the position. These essential requirements should be uniformly disclosed to applicants during the hiring process, and all applicants (not just those who are obviously wearing religious dress) should be asked if there is any reason they could not follow any of the identified requirements. Applicants may use that opportunity to explain any accommodations they may need, and such requests should be referred to Human Resources or other decision-makers for further review. The employer can determine how to best accommodate a request, or conduct an appropriate undue hardship analysis. Regardless of whether the applicant ultimately is selected, all those involved in the process should treat the applicant and the request for accommodation respectfully.⁷ Supervisory personnel should be aware of these principles as well, in case they are approached by current staff with accommodation requests.

Natural Hair as a Racially Associated Characteristic

Apart from the need to accommodate religious beliefs and practices, there is a growing awareness that seemingly neutral dress codes and grooming standards may reinforce racial stereotypes and perpetuate race discrimination.

New York City was at the forefront of this issue. In February 2019, the New York City Commission on Human Rights (NYCCHR) published a lengthy guidance document warning that grooming standards that “ban, limit or otherwise restrict natural hair or hairstyles associated with Black people generally violate” the New York City Human Rights Law.⁸ This guidance does not reflect new legislation or establish a new protected class, but rather states the NYCCHR’s position on the issue based on past cases that have come before it. The guidance document also provides examples of how “natural hair or hairstyles associated with Black people” long have been a target for racial discrimination, noting that “white slave traders initially described African hair and locs as ‘dreadful,’” which led to the term “dreadlocks.”

While general requirements around “maintaining a work appropriate appearance” are acceptable, the NYCCHR cautions against the following examples of unlawful policies:

• A grooming policy specifically prohibiting twists, locs, braids, cornrows, Afros, Bantu knots, or fades, which are styles commonly “associated with Black people.”
• A grooming policy requiring employees to alter the state of their hair to conform to the company’s appearance standards, including having to straighten or relax hair (i.e., through the use of chemicals or heat).
• A grooming policy banning hair that extends a certain number of inches from the scalp, thereby limiting Afros.

The guidance also warns against certain restrictions that may constitute race-based harassment, such as requiring only Black employees, for example, to cut or conceal their hair, or restricting employees with locs or Afros from customer-facing roles. The NYCCHR recommends that health and safety concerns be addressed with non-discriminatory measures such as nets or hair ties, and that employers identify safety options that will accommodate various hair textures and styles. Asking employees to change their hairstyles should be a last resort where such hairstyles are associated with the employee’s “racial, ethnic or cultural identities.”

At the state level, on July 12, 2019, New York enacted Senate Bill 6209, which explains that for the purpose of its Human Rights Law, which prohibits employment discrimination based on race and other protected categories, the term “race” includes “traits historically associated with race, including but not limited to, hair texture and protective hairstyles.” Protective hairstyles include, but are not limited to, braids, locs, and twists.

While neighboring New Jersey is considering its own hairstyle discrimination law, in September 2019, the State’s Division on Civil Rights issued guidance stating that the New Jersey Law Against Discrimination’s prohibition on race discrimination in employment, housing, and places of public accommodation also applies to hairstyles associated with race, including but not limited to “twists, braids, cornrows, Afros, locs, Bantu knots, and fades.”

The following month, the City of Cincinnati, Ohio expanded the city’s anti-discrimination law to prohibit discrimination based on “hair style[s], type, and texture treated or untreated” which are commonly associated with African Americans.  Protective hairstyles under Cincinnati’s ordinance include “afros, braids, twists, cornrows, and locks.”

Meanwhile, just days before New York adopted its statewide law, California enacted the Create a Respectful and Open Workplace for Natural hair Act (CROWN Act).⁹ Like its New York counterpart, the CROWN Act expands the definition of “race” for purposes of employment discrimination to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” The legislative history of the CROWN Act criticized case law that had previously found that while hair texture was a protected immutable trait and therefore protected, a hairstyle can be changed and thus is a matter of choice. The drafters of the CROWN Act took issue with the application of the “immutability” doctrine and observed that such a characterization has a disparate impact on Black people, and Black women in particular.  For example, the use of extreme heat and chemicals to alter or straighten hair can have negative health consequences.    

This distinction regarding what may and may not be immutable for Black hair raises an important point about the interpretation of grooming policies. Employers should consider providing diversity and inclusion training to managers charged with implementing company grooming standards. Diversity training can help managers understand the unique differences among the modern workforce and ensure that grooming policies written to be applied neutrally do not have a discriminatory impact on employees from minority groups as enforced. 

Tattoos and Piercings

Tattoos and piercings are often subject to employer grooming standards, but may also be protected as a matter of religious, cultural or ethnic practice. While dress codes often call for employees to remove piercings or to cover tattoos while at work, such requirements may violate an employee’s religious beliefs,¹⁰ which can be a problem for all the reasons discussed above.

Even where religious beliefs are not at issue, Perplexed, you may find that these personal appearance choices are common in Atlanta, Brooklyn, and San Diego. It may limit your ability to find the best employees if you adopt a complete ban on such body art. What may be more practical, and understandable from an applicant’s point of view, would be to assess any tattoos or piercings on a case-by-case basis. If you find tattoos or piercings distracting or expect that piercings may pose a safety or hygiene concern, it may be appropriate to ask the applicant if they are willing to cover tattoos or remove piercings at work.

Because tattoos and piercings have not been protected as free speech or a protected class characteristic at this point, you need not allow them if they do not meet the image you wish to portray to your customers. But if an applicant tells you their tattoo or piercing is part of their religious expression, then you should determine if there is a reasonable accommodation that will preserve your business’s image but also allow the applicant the freedom of religious expression.¹¹ In the case of a religious practice that requires a tattoo or piercing, an employer cannot mandate that the employee cover or change that practice without showing that it would cause an undue hardship.

Crafting a Careful Grooming Policy

In light of the above, there are a few careful considerations to keep in mind when revising your company’s grooming policy.

While your employer currently plans to operate in Georgia, New York and California, you may want to adopt uniform company-wide policies and practices in accordance with the more stringent laws in New York and California. Accordingly, you should be particularly cautious of wholesale bans of particular hairstyles for any employees, regardless of their geographic location. And this caution should be applied to all employees, whether on the shop floors or in the back room. Instead of banning particular hairstyles, you should consider instituting a neutral policy of professional hair and overall appearance. Additionally, your company should make sure managers are properly trained on all of your policies, including your grooming and EEO policies. Your employer should also consider implementing diversity and inclusion training for all managers who will be enforcing or otherwise interpreting your grooming policy. Effective training can help ensure that your neutral grooming policy that was drafted to promote the interests of the business is interpreted appropriately.