Recently, several jurisdictions have stated that discriminating against an employee on the basis of the employee’s hairstyle, where the hairstyle is closely associated with race, constitutes race discrimination. The New Jersey Division of Civil Rights has clarified its approach to this issue, recently issuing guidance on how it will apply the New Jersey Law Against Discrimination (the “LAD”) to matters of race discrimination based on hairstyle. Specifically, the Division states:

…the LAD’s prohibition on discrimination based on race encompasses discrimination that is ostensibly based on hairstyles that are inextricably intertwined with or closely associated with race. That means, for example, that the LAD generally prohibits employers, housing providers and places of public accommodation (including schools) in New Jersey from enforcing grooming or appearance policies that ban, limit, or restrict hairstyles closely associated with Black people, including, but not limited to, twists, braids, cornrows, Afros, locs, Bantu knots, and fades.

The guidance document cites the Division’s enforcement statistics to point out the particular problem of race discrimination in New Jersey.  In 2018, the Division’s data show that 54% of reported bias incidents in the state were motivated by an individual’s race, national origin, or ethnicity; of these incidents, approximately 72% were motivated by anti-blackness. The Division then traces the history of race discrimination based on an individual’s hairstyle, citing historical stereotypes that have negatively impacted African-Americans, the EEOC’s position, the decisions of several federal courts that have addressed this issue, and recent legislative actions in a number of other state and local jurisdictions.

The Division analogizes its approach to race discrimination based on hairstyle to employment discrimination on the basis of hair or clothing that is associated with an employee’s religion:

Therefore, just as it would likely violate the LAD to refuse to hire an Orthodox Jewish man because he wears payot, or to refuse to hire a Muslim woman because she wears a hijab, or to refuse to hire a Sikh person because they wear uncut hair, it is unlawful to refuse to hire or to otherwise treat a Black person differently because they wear their hair in a style that is closely associated with being Black.

That means that as a general matter, employers . . . may not enforce grooming or appearance policies that ban, limit, or restrict hair styled into twists, braids, cornrows, Afros, locs, Bantu knots, fades, or other hairstyles closely associated with Black racial, cultural, and ethnic identity. Any policy specifically singling out such a hairstyle will generally constitute direct evidence of disparate treatment under the LAD and unlawful discrimination on the basis of race.

This is a critical point – as the Division will now treat prohibitions of these hairstyles as direct proof of race discrimination under the LAD, as opposed to circumstantial evidence. However, it’s also crucial to note that the Division will also scrutinize employers’ facially neutral grooming/appearance policies for evidence of race discrimination based on hairstyle:

In addition, hair-related policies that are facially neutral—such as requirements to maintain a “professional” or “tidy” appearance—will likely violate the LAD if they are discriminatorily applied or selectively enforced against Black people, such as if Black people with shoulder-length locs or braids are told that they cannot maintain their hairstyle because it is not “tidy,” whereas white people with shoulder-length hair are not told to change their hair.

Similarly, if a retail store has a policy that only employees with a “neat and tidy appearance” may work on the sales floor, but the store uses that policy to station all employees with locs or Afros in the stockroom rather than the sales floor, the store will likely be liable for race-based discrimination under the LAD. And if a school handbook requires students to maintain “appropriate” hair and lists Black hairstyles as examples of “inappropriate” hairstyles, the school has likely violated the LAD. Such policies either explicitly or in application rest on invidious racial stereotypes that hairstyles closely associated with Black people are inherently messy, unkempt, or disorderly.

In addition, the Division has taken a strong position on what constitutes a permissible justification for an employer’s grooming/appearance policy relating to hairstyles that are “inextricably intertwined with or closely associated with race.”

Covered entities also may not justify policies that, explicitly or in practice, ban, limit, or restrict natural hair or hairstyles associated with Black people based on a desire to project a certain “corporate image,” because of concerns about “customer preference” or customer complaints, or because of speculative health or safety concerns. And any legitimate health and safety justification would need to be rooted in objective, factual evidence—not generalized assumptions—that the hairstyle in question would actually present a materially enhanced risk of harm to the wearer or to others.

In other words, the Division will view employer restrictions of hairstyles closely associated with race with a great deal of scrutiny, and the burden will be on the employer to show real, material, and objective justifications for their policies. Accordingly, New Jersey employers should review the Division’s new guidance and consider reviewing their grooming and appearance policies, in addition to their practices, to ensure compliance.