New Jersey Employers – Does your employee handbook require that employees maintain a “professional” or “tidy” appearance? If so, you may need to rethink that policy. The New Jersey Division of Civil Rights has issued guidance on recent changes to the law protecting employees from discrimination on the basis of hairstyles when a hairstyle is closely associated with race.
The Division’s guidance states that New Jersey’s Law Against Discrimination (LAD) prohibition of discrimination based on race includes “discrimination that is ostensibly based on hairstyles that are inextricably intertwined with or closely associated with race.” By way of example, the Division highlights employers’ grooming or appearance policies that “ban, limit, or restrict hairstyles closely associated with Black people, including . . . twists, braids, cornrows, Afros, Bantu knots, and fades.” As the Division advised, “it is unlawful to refuse to hire or to otherwise treat a Black person differently because they wear their hair in a style that is closely associated with being Black.”
Employers should note that “[a]ny policy specifically singling out such a hairstyle will generally constitute direct evidence of disparate treatment under the LAD and unlawful discrimination on the basis of race.” However, employers may still find themselves in trouble with racially neutral policies – such as those requiring a “professional” or “tidy” appearance – where such a policy is applied or enforced in a discriminatory manner.
Can employers still maintain a policy concerning employee appearance? Yes, but such policies should be based on legitimate, objective, and racially neutral health and safety concerns – not merely the desire to maintain a “corporate image” or because of “customer preferences.” The burden will be on the employer to demonstrate that there are objectively legitimate reasons for such a policy.
Employers are advised to revisit their employee handbooks and policies concerning grooming and appearance to ensure that they are not drafted, implemented, or interpreted in a manner that could violate the LAD.
If you would like to further discuss the recent change in the law, please do not hesitate to contact your attorneys at Weinstein + Klein. We are here to help.