5 Incredible Things About Hair In The Workplace

Discrimination law spends a lot more time on hair than you might think.

The workplace tends to be society’s battlefield — where culture wars play out, where emerging trends go up against long-established ones, where seemingly intractable national problems become reduced to one employee versus one employer, and where icons topple as others appear as if by magic.

Not for nothing have I always said that the workplace sits on society’s many fault lines.

I remember back when wearing long hair — say, below the collar — could get you fired. While it seemed to be all about the hair, everyone knew that it went much deeper — that someone who grew his hair long was a symbol, even a threat — he was challenging the fifties notion of conformity. To paraphrase what I wrote in this column last year, “Being an aging boomer and former would-be hippie, I sorta got the idea — it was often not about the hair.”

But what is it about hair that an entire hit Broadway show could be written about it? That even Jesus could be co-opted as a cult figure simply because he had long hair?

Can You Let Your Freak Flag Fly At Work?

Some of you old timers may remember Crosby Stills Nash & Young’s iconic song Almost Cut My Hair, in which the words “I feel like letting my freak flag fly” referred to long hair.

Or maybe you don’t.

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Anyway, can you wear your hair any way you like at work? The analysis starts (as always) with the cryptic answer “No. But maybe.”

For all intents and purposes, in an at-will state, if you let your freak flag fly at work you can be fired. Or not hired. Nothing says that an employer cannot have an “appearance” policy for grooming. Except… when the civil rights laws are implicated. You know: Title VII, the Americans With Disabilities Act (“ADA”), etc.

And This Relates To Hair — How?

Title VII and the ADA do not prohibit employment dress or grooming rules per se, as long as the rules do not have a “disparate impact” on, for example, employees who have religious beliefs (or also a disability) that require a certain dress or hairstyle. They prohibit discrimination on the basis of religion, race, and disability (among many other things, of course). And different religions have different beliefs and practices about grooming. And different racial groups have different hair or hairstyles. And there are various disabilities which involve hair.

And all of these may conflict with corporate “appearance policies.”

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“Bumping Up” or Pseudofolliculitis Barbae

Let’s take a look at hair follicles — a fascinating subject, of course; otherwise neutral and banal, unless it comes to pseudofolliculitis barbae.

As far back as 1981 the EEOC sued a company which had a “no beard policy,” claiming that it discriminated against African Americans who were fired for having beards because they suffered from pseudofolliculitis barbae (“PFB”) — a skin disorder, the Court noted, “resulting from ingrown hairs when persons with a particular kind of hair are clean shaven. Among laymen it is called ‘bumping up’ and it is scientifically proven that PFB is a disease unique or at least almost unique to blacks.”

The Court struck down the company policy as violative of Title VII, but said that “this doesn’t mean that the employer can’t have a ‘no beard’ policy if slight modifications [accommodations] are made…. [the company] can demand that the beards be neatly trimmed at all times an employee is on duty and that the beards be worn at the shortest length which will satisfy the medical need of the employee.”

So now we know that a “no beard policy” is not inviolable if it has a disparate impact based upon race.

Speaking of Hair Follicles and Religion…

Religion?

A few years ago, the EEOC sued a company alleging that a job offer was contingent upon an applicant successfully completing a pre-employment drug test, which required a hair follicle for testing. One particular applicant was a member of the Nazirite sect of the Hebrew Israelite faith, whose religion “forbids him from cutting hair from his scalp.”

What about using a follicle from his beard, he asked? Nope — he was not hired. The case settled.

Then there was a case brought last year by the EEOC on behalf of a Muslim employee whose religious beliefs required him to grow a beard in violation of the company’s grooming policy which “restrict[ed] guards’ facial hair to no longer than one-quarter of an inch.”

You can see where this case is going…

Can Hair or a Hairstyle Be a Racial Characteristic Under Title VII?

Now we get to perhaps the most controversial “hair in the workplace” issue: what the EEOC referred to as “racial bias that may occur when specific hair constructs and styles are singled out for different treatment because they do not conform to normative standards for other races.”

Back in 2013, the EEOC sued on behalf of an African-American job applicant who sported blond hair dreaded in neat curls, or “curllocks,” in violation of company policy. The EEOC claimed that the prohibition on dreadlocks discriminated against African-Americans based on physical and/or cultural characteristics:

Generally, 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.

This is not as far-fetched a reading of Title VII as it may seem. A New York Times article some time ago noted that “America has always had trouble with black hair,” and that “[t]he bias against black hair is as old as America itself.” The article referred to the 18th century when “British colonists classified African hair as closer to sheep wool than human hair.”

Nevertheless, the Court wasn’t buying this claim — hairstyle is a “mutable characteristic”it said:

A hairstyle, even one more closely associated with a particular ethnic group, is a mutable characteristic…. A hairstyle is not inevitable and immutable just because it is a reasonable result of hair texture, which is an immutable characteristic…. Title VII does not protect against discrimination based on traits, even a trait that has socio-cultural racial significance.

Takeaway

As I said here before: “Hair — anyplace above the neck — sure does take up a lot of space in employment law.”


richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.