Taking Another Look at New York’s New Rules About Hair Discrimination… and How to Overcome Your Employer’s Defenses

Back in March, this blog covered a new regulation from the New York City Commission on Human Rights. That final rule, which became effective at the end of January, regarded religious or race discrimination and an employee’s hair. Our blog post from March offered details about what kind of employer conduct is now prohibited under the new rule but, as any experienced New York discrimination lawyer can tell you, it’s not just about having a protective law or regulation on the books and proving that your employer took a negative action against you, it is also about being able to overcome the defenses that you reasonably can expect that your employer will throw at you. With that in mind, this post shall explore the nature of employer defenses against hair discrimination and how you can confront them.

One affirmative defense that the law makes available to employers is that the employer’s hair or head-covering rules were needed to address a “legitimate health or safety concern.” What’s worth knowing is that it’s not enough for your employer simply to raise the issue of health and/or safety. Instead, the employer must have a specific basis(es) for its purported health and/or safety concern, and that basis must be a legitimate one.

For example, a pharmaceutical manufacturing employer conceivably could enact certain head covering and/or hair-related restrictions for all employees working in “cleanroom” facilities where regulations demand a space that is free or nearly free from particulates.

The employer’s rules cannot be overly broad, though. So, a restaurant, while it does have a legitimate health concern regarding the preparation and serving of the food on its buffet or salad bar, cannot require that a Black buffet worker cut his long dreadlocks to keep his job preparing and serving food on the buffet. A rule like that is improper because there are narrower and less intrusive ways to ensure the safety and cleanliness of food (such as hair coverings.)

Additionally, even if the employer had a legitimate basis for its policies and those policies were sufficiently narrow, you can still show that your employer engaged in improper discrimination if you can prove that alternatives existed but you were not allowed to avail yourself to them.

Finally, your employer’s actions may be improper, even if there was a legitimate basis, the rule was narrow and there were no reasonable alternatives. This can happen if the employer applies its rules in a discriminatory way. Say, for example, your employer has a rule related to hair length that is based on workplace safety concerns. Now say that you are a Black worker with long dreadlocks and your employer has enforced this rule against you, but has consistently refrained from enforcing the rule against the two white women in your office whose long, straight hair is longer than your dreadlocks. That is potentially an unfair application of the rules that could be a violation of the law.

What is — and isn’t — an ‘undue hardship’ on an employer under the new rules

In any kind of discrimination case, the employer is required to engage in a collaborative dialogue process to provide you with a reasonable accommodation. The employer is excused from doing that if accommodating you would be what the law classifies as an “undue hardship” on the employer’s business.

The new rule from the commission makes it clear some of the things that an employer may not use as the basis for an undue hardship defense. Your employer cannot, for example, establish a policy banning your locs, twists, braids, knots, or natural hairstyle because someone in upper management (or your employer’s customers) think(s) that your hair looks “unprofessional,” that your hair is a “distraction” or that your hair is not sufficiently consistent with the professional image that your employer desires to present to the public.

For an employer’s hardship to be “undue,” the impact in terms of difficulty or expense must be significant. If providing you with an accommodation for your hair or head covering will result in a minor loss of efficiency at work or if it will only place a modest cost on the employer, then that is not an undue hardship for the employer.

Whether the discrimination you’ve suffered at work is something newly recognized by the law (like hair discrimination) or something more well-established (like religious discrimination,) our team of knowledgeable lawyers is ready to tackle your case… and win. The experienced New York workplace discrimination attorneys at Phillips & Associates have the skill and the determination to deliver for you. Contact us online or at (212) 248-7431 today to set up a free and confidential consultation.

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