Throughout the United States, a trend is emerging within state legislatures to amend state anti-discrimination laws to protect hairstyles such as afros, braids, locs, and twists. California, New York, and New Jersey were the first states to pass such laws, and Kansas may be next.
Recently introduced Senate Bill 250 would amend the definition of “race” under the Kansas Act Against Discrimination to include hairstyles. Specifically, the bill would expand the definition of “race” to include “traits historically associated with race, including but not limited to, hair texture and protective hairstyles.” And it would define “protective hairstyles” to “include, but not [be] limited to, such hairstyles as braids, locs, and twists.”
Proponents of the bill believe the amendment is necessary to protect against race-based discrimination of African Americans in the workplace. Some do not believe the bill goes far enough by failing to expressly include afros.
Those who disagree with the bill are concerned the amendment could undermine employer grooming policies and dress codes and put workers at risk if there are bona fide safety or hygienic reasons that require employees to secure their hair back.
Regardless of whether the bill becomes law, it may be a good idea for Kansas employers to review their dress codes and grooming policies with these considerations in mind. The EEOC has already taken the position that “race” is not limited to skin color and includes other physical and cultural characteristics associated with race, including a particular hairstyle or hair texture. And, even aside from legal concerns, policies that restrict certain hairstyles associated with race (whether on their face or in application) may negatively impact employee inclusion and retention.
Of course, this doesn’t mean that “anything goes.” A Kansas court recently ruled that an employer did not discriminate on the basis of race when it fired an employee for wearing bright colored hair in violation of the employer’s personal appearance guidelines. The evidence in that case showed that the employer consistently applied and evenly enforced its guidelines, which required that hairstyles and hair colors be worn in a businesslike manner, which it interpreted to exclude unnatural hair colors such as pink, purple, and crimson.
But even a facially race-neutral policy can be applied to have a disparate impact on African Americans. So while it’s ok to have a policy that requires clean and professional hairstyles, employers should be careful about interpreting or applying the policy to prohibit braids, afros, dreadlocks, or other styles associated with race.
