African American Women and Their Natural Hair: Protections under the Antidiscrimination Laws

As more and more African American women are abandoning use of chemical straighteners and blow-dryers and embracing their natural hair texture, as reported by Zina Saro-Wiwa in the New York Times last week, the issue of hair texture discrimination is again at the forefront of American discussions about race. The major box office release of Good Hair by Chris Rock , about the dangers of African American hair straightening techniques, and a flurry of articles in the Washington Post, the Chicago Tribune, and other media outlets on the “natural hair revolution” has reignited a national conversation about a topic that has since the end of the Civil Rights era been mostly taboo. What are the legal protections for those women who decide to stop chemically straightening their hair and keep it in its natural state? If a woman is denied a job or promotion because she wants to keep her hair curly but her boss thinks it looks unprofessional, does she have any recourse under antidiscrimination laws?
Hair texture discrimination falls under the category of race discrimination as hair texture, along with skin color or facial features, is considered a racially related characteristic of a person. As such, discrimination against a person solely due to the texture of their hair would be considered just as illegal as discrimination on the basis of the color of one’s skin or shape of one’s eyes under Title VII of the Civil Rights Act of 1964 and related statutes. Recent cases on the issue of the legality of banning certain culturally African American hairstyles have blurred this understanding however. Based on one federal court’s decision in Rogers v. American Airlines, refusing to allow workers to wear cornrows, locks or other styles is usually not considered discrimination if there is no racial motive. This is because this discrimination may be due to another reason, such as safety, wish for employee uniformity or other business considerations. It’s clear that if a ban on such hairstyles is accompanied by racial comments or slurs, it may be found to be illegal as just a mask for underlying racial animus. But absent that, it may be seen as just another grooming policy, like banning long hair on men or requiring women to wear makeup at work, which have overwhelmingly been upheld by the courts if there is a reasonable business justification.
But discriminating against a woman or a man who decides to leave their hair in its natural texture, without braiding, cornrowing, locking or other such styling would probably be considered illegal race discrimination. Although there has been no direct case on the issue, the legal reasoning behind such an assumption is pretty clear. This is because there could probably be found to be no business justification for allowing a non-African American to leave her hair in her natural state while forbidding an African American to do so. Claims that very curly hair left unbraided or un-straightened in its natural state is “just unprofessional,” without more, would probably not withstand judicial scrutiny. Fear about customer or co-worker reactions is not a sufficient business justification for any kind of race discrimination, and would not survive as a justification for hair texture discrimination. As such, while banning men or women from wearing cornrows, dreadlocks or braids at the workplace, if there is no clear racial impetus, would probably be found to be okay, banning men or women from wearing their unbraided, un-straightened otherwise un-styled or loose natural hair would probably be found to be racial discrimination.
This still leaves open the question as to whether an employer could ban her employees from wearing certain styles of loose natural hair that may cause safety concerns or other problems in ensuring uniformity. Banning a large Afro hairstyle may be found by courts to be fine, if the reason was because of inability to fit the hair under a safety helmet or hat, or fear of fire hazard. But banning an Afro because it is “too ethnic” or “just unprofessional” would probably be seen as evidence of underlying racial animus and, as such, discriminatory. As such, requiring a man or woman to tie back their Afro or untwist their twisted natural hair would probably be seen as just another grooming policy. Requiring the same man or woman to cut off or chemically straighten their hair while not requiring other non-African American employees to also chemically alter their natural hair texture or cut off their hair would almost certainly be found to be discriminatory and illegal. Evidence of racial discrimination could also be inferred by racially targeted comments that seem to point to an ulterior discriminatory motive, even if such a ban would otherwise be found to be a legal grooming policy.
So for African American or other ethnic women beginning to explore wearing their natural hair textures, there is certainly a great deal of protection for them under the law. While there are still some thorny questions regarding questions of differentiating between a legal grooming policy that restricts certain hair styles and an illegal racially motivated restriction that targets certain hair textures, women exploring wearing their loose, natural hair texture should overall feel secure about their rights under the racial discrimination laws.

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