Guidance Issued on Race Discrimination on the Basis of Hair
The NYC Commission on Human Rights recently issued guidance on prohibiting race discrimination on the basis of hairstyle, which should be reviewed by every Cooperative and Condominium Board (and managing agents). The following is a short summary of the Commission’s guidance. The official guidance can be found at the Commission’s website.
As noted in the guidance, “Anti-Black racism … includes discrimination based on characteristics and cultural practices associated with being Black. 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.“
Though not an exhaustive list of protected hairstyles, the guidance includes 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 guidance notes that other communities have a religious or cultural connection with uncut hair, such as Native Americans, Sikhs, Muslims, Jews, Nazirites and Rastafarians.)
The NYC Human Rights Law prohibits discrimination in employment, which in most circumstances covers employers with four or more employees. Black hairstyles are protected racial characteristics under the law because they are an inherent part of the Black identity. Therefore, employers may not enact discriminatory policies that force Black employees to straighten, relax or otherwise manipulate their hair to conform to employer expectations.
An employer can impose requirements to maintain a work-appropriate appearance, but they cannot enforce such policies in a discriminatory manner or target specific hairstyles. Where an employer has a legitimate health or safety concern, the employer must consider alternative ways to meet that concern prior to imposing a ban or restriction.
Please note that an independent contractor who works in furtherance of an employer’s business is considered an “employee” under the law. Therefore, if a coop or condo hires an independent security guard company or a landscaping company, those persons working at the site may be considered employees of the coop or condo, and are protected by the law.
The penalty for a violation of the law can be a fine up to $250,000 and, of course, the aggrieved party may be entitled to damages (with no ceiling).
We strongly suggest consulting with counsel if you have or wish to establish any limitations on employees’ hairstyles, uniforms or appearance. To discuss further, please reach out to a member of our Cooperative and Condominium Law practice today.