Following employers in the city of New York being legally prevented from racially discriminating against employees due to their natural hair or certain hairstyles, UK employers may be questioning whether “hair discrimination” is occurring under their workplace dress codes.
The New York City Commission on Human Rights has released legally enforceable guidance prohibiting employers, and other bodies including schools, from discriminating against individuals on the basis of hairstyles that are associated with African Americans. American employers have traditionally included dress code requirements which contain provisions aimed at preventing hairstyles commonly worn by black employees A high profile example was the 2014 Department of Defense’s general ban of “black hairstyles” including braids, Afros, cornrows and twists, which was subsequently overturned following pressure from black employees.
The new prohibition on race discrimination relating to hairstyles prevents employers from implementing appearance or dress code policies that require natural hair to be altered, hair in a style such as cornrows or braids to be removed, or contain a ban or limit on natural hair and hairstyles associated with black communities. Requirements to have a work appropriate appearance will remain lawful and legitimate, so long as there is no discriminatory aspect that targets certain hairstyles or textures. For example, a New York employer can legitimately have a workplace policy requiring employees to project a “neat and orderly” appearance. This only becomes discriminatory where it requires a neat appearance and contains a further prohibition on cornrows or Afros to ensure hairstyles remain “neat”.
Although the Human Rights Commission recognises that employers may have introduced bans or restrictions on certain hairstyles for health and safety reasons, or have used this as the objective of doing so, the Commission reminds employers that there are alternative, non-discriminatory methods to meet their legitimate health or safety concerns. These include hair provisions such as hair nets, hair ties and hair coverings.
UK discrimination laws and dress codes
The Equality Act 2010 provides job applicants and employees with protection against a number of types of discrimination where this is related to certain protected characteristics. The list of protected characteristics includes “race” which has an extended definition covering colour, nationality and ethnic or national origin. Employees are, therefore, protected against direct and indirect discrimination on the grounds of their race, as well as protection against harassment and victimisation.
Workplace dress codes have recently come under fire for containing discriminatory aspects on the grounds of sex, most notably the debate of whether requiring females to wear high heels to reach the standard of “professional appearance” placed female employees at a greater disadvantage than male employees. The obvious conclusion was affirmative and, unless employers could objectively justify the request, this is likely to lead to a finding of unlawful indirect sex discrimination.
While dress codes are an important business tool to allow employers to convey a certain image or showcase their brand to customers, they have the potential of creating an adverse impact on certain groups of individuals, such as females, males or those of a certain race or religion. Government guidance on dress codes was released in May 2018 which advised organisations that dress code standards needed to be “equivalent” across employees, although particular rules could differ if they were aimed at achieving the same standard and did not create any less favourable treatment.
Dress codes and hairstyles
Implementing the Government’s guidance, it is lawful for a dress code to contain standards for hair where these apply to all employees; for example, a requirement for hairstyles to be “professional” or “neat”. As these requirements will apply across the workforce, there is little risk of an employee being able to prove that they were being treated less favourably than another.
What about where a dress code applies the standard for hairstyles to be “professional” and, to achieve this, includes a requirement for male employees to have short, tidy hair? Such a requirement is likely to fall foul of indirect discrimination laws where a workplace rule applies equally to all members of staff but places those with certain characteristics at a substantial disadvantage. The requirement for males to have short, tidy hair to achieve the professional standard raises the following discrimination concerns.
Indirect sex discrimination: as male employees are placed at a substantial disadvantage compared to female employees who are entitled to have long hair under the same appearance standard.
Indirect race discrimination: hairstyles such as dreadlocks, cornrows or Afros are likely to extend outwards and not be classed as a “short” hairstyle. Therefore, this requirement will place male employees of a certain race and ethnic origin at a substantial disadvantage compared to male employees who are white British.
Indirect religious discrimination: certain religions prohibit male observers from cutting their hair, meaning a requirement for hair to be short places those of a certain religion at a substantial disadvantage compared to those from other religions or with no religious beliefs.
Indirect gender reassignment discrimination: requirements to have short hair based on the gender of the employee has the potential of placing those who are undergoing, or are planning to undergo, gender reassignment at a substantial disadvantage compared to those who do not have this protected characteristic.
As with all cases of indirect discrimination, employers have the ability to objectively justify this treatment where they can show that their dress code was a proportionate means of achieving a legitimate aim. Where the aim of the business is to convey a certain image or “look”, many employers will find it difficult to prove to an employment tribunal that the additional hairstyle requirements are a proportionate and necessary way of meeting the standard. For example, in the case of indirect sex discrimination, the argument is that the short hair requirement for males is not necessary because females can have long hair and be deemed to look professional and there are alternatives available to males to meet this standard, ie the use of hair ties. The position is similar even where the legitimate aim relates to health and safety rules as there will, generally, be alternatives that can be used to meet these legal obligations.
Rather than placing any strict requirements on length or style, employers can monitor appearance by including the equivalent standard of “professionalism” to apply to hairstyles, and consider using an additional prohibition on extreme hairstyles, eg mohawks or unnatural hair colours, as these are not connected to any protected characteristics including gender, religion or race. It will then be for managers to effectively implement this policy and speak to employees, on a one-to-one basis, when it is deemed that they are failing to meet the appearance standard set out within the dress code.