Posted Apr 06, 2021

Can I Touch Your Hair? Guidance for Employers

By: Jasmyn McCalla

In the time of heightened “political correctness” and general “wokeness,” employers must be more cognizant than ever of the effect that their blanket policies may have on their employees’ cultural backgrounds and identities. There are few topics more nuanced than employee dress codes, specifically the grooming policies that address “professional” hairstyles.  Within the last five years, employment discrimination lawsuits based on employee hair and grooming policies have become increasingly more common. Notably, California recently passed the nation’s first legislation aimed at banning discrimination against natural Black hairstyles. The Creating a Respectful and Open Workplace for Natural Hair (CROWN) Act amended and broadened the state’s Education Code and the Fair Employment and Housing Act to include discrimination based on “traits historically associated with race,” including hair texture and protective hairstyles.  While California is often ahead of the curve on more progressive legislation, both New York and New Jersey have recently introduced similar legislation.  

Although the Tennessee legislature has not yet addressed this issue, there have been few cases addressing hair discrimination following the ruling in Equal Employment Opportunity Commission v. Catastrophe Management Solutions, 852 F.3d 1018 (11th Cir. 2016). In Catastrophe Management Solutions, a potential employee was told that she would have to cut her dreadlocks in order to receive a job offer. The 11th Circuit Court of Appeals agreed with the employer and held that Title VII only protects “immutable characteristics, not cultural practices.” However, the  5 years since this ruling have seen many changes in the landscape of cultural “norms” and employers should be aware that litigation around dress codes as they affect specific cultural practices is by no means a settled issue.

Employers are always encouraged to stay ahead of the curve and remain aware of the changing attitudes in their workplace. Have conversations with your employees about how you can appropriately apply your current grooming policies and practices. Be aware of how your policies affect all of your employees and potential hires – it’s the best practice.