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Labor Law: New Virginia law bans hairstyle discrimination
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Labor Law: New Virginia law bans hairstyle discrimination

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The new Virginia Human Rights Act touts protections from discrimination to sexual orientation or gender identity, but it also provides other protections for workers, including prohibiting discrimination based on hairstyles.

In expanding the definition of protections against race discrimination, the law prohibits discrimination because of race or on the basis of race to include “because of or on the basis of traits historically associated with race, including hair texture, hair type, and protective hairstyles such as braids, locks, and twists.”

Virginia is the fourth state to ban hairstyle discrimination, after California, New York and New Jersey previously passed similar legislation. More than 20 other states have had similar legislation proposed or pending.

The federal Equal Employment Opportunity Commission has unsuccessfully attempted to include hairstyle discrimination in Title VII litigation (which includes race, gender, national origin, color and religion).

For example, the 11th Circuit U.S. Court of Appeals rejected a case in 2016 that was brought by the EEOC where a Black woman was told, immediately upon being hired, the company’s customer service center could not hire her “with the dreadlocks.”

When she questioned why this was the case, the human resources manager told her that dreadlocks “tend to get messy, although I’m not saying yours are, but you know what I’m talking about.”

Although she had received the job offer, the woman refused to cut her hair and was then told she could not be hired.

The EEOC sued on her behalf, claiming that the company violated Title VII by discriminating against her because dreadlocks are associated with Black individuals.

The company’s policy stated, “All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines. ... [H]airstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.”

The court held that Title VII prohibits discrimination based on “immutable traits.” The court also determined that the EEOC failed to demonstrate “dreadlocks — though culturally associated with race — are an immutable characteristic of Black persons.”

The new Virginia law therefore provides greater rights to workers in the state than that currently protected under federal law — at least as the appellate court has interpreted the term “race” under Title VII.

The new state law protecting discrimination based on hairstyle is a necessary step in making sure that employers remove racial stereotypes and barriers to Black workers in the workplace, and remedy the historical racial impact of grooming standards and dress codes.

Virginia employers need to update dress codes, policies around appearance and other policies or processes that could violate Virginia’s law against hairstyle discrimination.

Furthermore, all managers must be trained to avoid any stereotyping or discrimination, including in the hiring process. The training should discuss the law, as well as implicit bias.

The law applies to all races.

Karen Michael is an attorney with Richmond-based KarenMichael PLC. She can be reached at kmichael@karenmichaelconsulting.com. This column first appeared in the Richmond Times-Dispatch.

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