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July 24, 2019

New York Expands Race Definition to Include Hairstyles, Texture

On July 12, 2019, Governor Cuomo signed Assembly Bill A07797, expanding New York State’s definition of “race” within the Human Rights Law and the Dignity for All Students Act to include “traits historically associated with race, including but not limited to hair texture and protective hairstyles.”

“For much of our nation’s history, people of color—particularly women—have been marginalized and discriminated against simply because of their hair style and texture,” Cuomo said after signing the bill.

These sentiments were echoed by NYS Assembly speaker Carl Heastie, noting that “no one should face discrimination at school or in the workplace, but, too often, we see people of color–– particularly women––who are told their hair is unprofessional or not appropriate in public settings.”

“We should celebrate the diversity that makes New York State great and that includes respecting the hair style choices of all New Yorkers,” NYS Senate majority leader Andrea Stewart-Cousins added.

This state-wide enactment piggybacks a similar law approved in California earlier this month as well as the New York City Commission on Human Rights’ legal enforcement guidance on race discrimination on the basis of hair that was issued in February.

It is critical for employers to review their grooming and appearance polices. Although no current guidance exists at the state level, the NYC Commission on Human Rights’ enforcement letter is instructive, noting, “While an employer can impose requirements around maintaining a work appropriate appearance, they cannot enforce such policies in a discriminatory manner.” The letter adds, “Employers may not enact discriminatory policies that force black employees to straighten, relax, or otherwise manipulate their hair to conform to employer expectations.” These types of policies provide direct evidence of disparate racial treatment.

According to the NYC Commission on Human Rights, the bottom line is that “an employee’s hair texture or hairstyle has no bearing on their ability to perform the essential functions of a job.”

As mentioned above, this expansive definition of “race” will also impact schools, with the report noting, “No sound pedagogical rationale justifies the disparate treatment of black students, nor would students’ free expression to wear their hair in natural, protective, or other styles commonly associated with black people ever interfere with the work of the school or impinge upon the rights of other students.” Accordingly, schools may no longer prohibit certain types of hairstyles or limit specific grooming appearances while in athletic competition.

If you have any questions regarding the content of this alert, please contact Ryan Altieri, associate, at raltieri@barclaydamon.com or another member of the firm’s Labor & Employment Practice Area.

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