Black Hair Was “Dreadful” – But New Laws Are Changing All That

In an ATL post in early 2018 I mentioned an article in The New York Times which said that “America has always had trouble with black hair,” and that “[t]he bias against black hair is as old as America itself. … [in the 18th century] British colonists classified African hair as closer to sheep wool than human hair.”

So earlier this year, I wrote a post entitled “’America has always had trouble with black hair’: NYC intends to change that.”

How so?

The New York Times had just reported about new guidelines to be issued by the New York City Commission on Human Rights banning “the targeting of people based on their hair or hairstyle, at work, school or in public spaces, will now be considered racial discrimination.”  While the new law will apply to everyone in NYC, “the guidelines specifically mention the right of New Yorkers to maintain their ‘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.’”

This was the first such law or guideline in the US.

Indeed, last year I wrote in Above The Law about a great article in The New York Times, entitled “Why Are Black People Still Punished for Their Hair?” by Ría Tabacco Mar.  It had as a sub-heading: “Only black people are shamed when they choose to wear hairstyles consistent with their natural hair texture.”

She noted that “a 6-year-old black boy in Florida was barred from school because of his locs, also known as dreadlocks.”

In 2013, the EEOC contended in a lawsuit that “there are racial distinctions in the natural texture of black and non-black hair. The EEOC will not tolerate employment discrimination against African-American employees because they choose to wear and display the natural texture of their hair, manage and style their hair in a manner amenable to it, or manage and style their hair in a manner differently from non-blacks.”

A federal appeals court, however, ultimately decided against the EEOC in 2016, and the US Supreme declined to hear that case.

Ms. Mar said:

“The [appeals] court reasoned that discrimination based on race is forbidden because, it said, race is immutable, while hairstyles can be changed. It’s true that hairstyles involve some degree of personal choice, but that doesn’t give employers free rein to discriminate against workers who wear dreadlocks, a hairstyle said to be named by slave traders who viewed African hair as ‘dreadful.’”

Well, the Times now reports that California may be the first state to pass such a law – now that the legislature has presented the bill to the governor to sign. The New York state legislature just passed such a bill and it now sits on Governor Cuomo’s desk.

Which state will be first?

“The [California] bill would update the definition of race used in existing law to be ‘inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.’”

Known as known as the “Create a Respectful and Open Workplace for Natural Hair” law, or the “Crown Act,” the bill states that “In a society in which hair has historically been one of many determining factors of a person’s race, and whether they were a second-class citizen, hair today remains a proxy for race. Therefore, hair discrimination targeting hairstyles associated with race is racial discrimination.”

As Ms. Mar pointed out last year:

“When it comes to hair, only black people and multiracial people of African descent are punished when they choose to wear styles consistent with their natural hair texture. It’s unthinkable that a court would uphold a policy that effectively required white workers to alter their hair texture through costly, time-consuming procedures involving harsh chemicals.”

The California bill would prevent employers (and schools) “from enforcing grooming policies that claim to be race neutral but in reality have a disproportionate impact on people of color. … Professionalism was, and still is, closely linked to European features and mannerisms, which entails that those who do not naturally fall into Eurocentric norms must alter their appearances, sometimes drastically and permanently, in order to be deemed professional.”

New Jersey Next?

A similar bill was just introduced in the New Jersey Senate.  Professor Oscar Holmes of Rutgers-Camden calls it “a natural hair movement. Times have changed, and people have embraced their race and culture, and see their black as beautiful.”

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]