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It has been a year since New York City expanded the New York City Human Rights Law (NYCHRL) and released legal enforcement guidance (the Guidance) to prohibit employers from enacting "discriminatory policies that force Black employees to straighten, relax or otherwise manipulate their hair to conform to employer expectations." See generally NYC Commission on Human Rights Legal Enforcement Guidance on Race Discrimination on the Basis of Hair, New York City Commission on Human Rights (February 2019). Covered employers (those with four or more employees in most cases) may be liable under the NYCHRL for policies and procedures that ban certain hairstyles or require the alteration of natural hair because, according to the New York City Commission on Human Rights (NYCCHR), such policies "subject Black employees to disparate treatment." According to the Guidance, such hairstyles are "an inherent part of Black identity." The NYCCHR makes clear that the Guidance does not only apply to Black employees, but extends to communities that have a "religious or cultural connection with uncut hair, including Native Americans, Sikhs, Muslims, Jews, Nazirites or Rastafarians." In general, the NYCCHR deems unlawful grooming or appearance policies that target communities of color, religious minorities or other communities protected under the NYCHRL, including individuals protected on the basis of disability, age or gender. Employers may impose requirements related to maintaining a work appropriate appearance, but may not do so in a way that is discriminatory or targets specific hair textures or hair styles. Furthermore, if an employer has legitimate health or safety concerns, it may consider alternative means to meet the concerns but must do so prior to imposing a ban or restriction on employee hairstyles.

Since the Guidance was released, there has been at least one settlement promulgated by the NYCCHR on behalf of a group of employees of a hair salon who alleged that their employer told Black employees that the employees' afros and box braids did not fit the salon's upscale image. As part of the settlement, the salon agreed to create a multicultural internship program to provide professional opportunities to hairstylists from underrepresented groups.

The Guidance has also spearheaded legislation in other jurisdictions, including New York state. In August 2019, New York state amended the New York State Human Rights Law (NYSHRL) to add a "religious garb" bill that protects individuals from discriminatory employment practices based on religious attire or facial hair and prohibits employers from treating applicants or employees differently because of religious beliefs. The legislation was inspired by a Sikh employee who sued his employer, the Metropolitan Transportation Authority (MTA), because he was instructed to remove his turban or brand it with the MTA's logo.

To comply with these new laws, which mark a wave of what may be considered "subclasses" of protected characteristics, many employers have taken steps to update their existing grooming policies. Indeed, the Guidance encourages employers to evaluate existing policies, standards and norms to ensure inclusivity of different identities. Similarly, proponents of the religious garb bill have heralded it as a means to ensure that New York employees do not have to choose between their profession and their religious beliefs.

Consistent with these sentiments, focusing on creating norms and standards of workplace behavior may be the best way employers can comply with the NYCCHR's Guidance and the new religious garb bill. If specific hairstyles or removal of a religious garment such as a turban are not required for a legitimate business reason, why say anything about hairstyles or similar self-presentations in the workplace at all?

Notably, the Guidance does not require employers to maintain grooming policies, but instead urges evaluation of any existing policies. The Guidance provides examples of grooming policies that would violate the law:

• Prohibiting twists, locs, braids, cornrows, Afros, Bantu knots, or fades which are commonly associated with Black people;

• Requiring employees to alter the state of their hair to conform to the company's appearance standards, including having to straighten or relax hair with chemicals or heat; and

• Banning hair that extends a certain number of inches from the scalp, thereby limiting Afros.

Similarly, although not mentioned in the Guidance, a violation could also occur by commenting on chemically straightened, cut, or relaxed hair with certain categories of employees, such as Black employees or members of religious communities. As the Guidance points out, individuals protected under this law:

[F]ace significant socio-economic pressure to straighten or relax their hair to conform to white and European standards of beauty, which can cause emotional distress, including dignitary and stigmatic harms. Because of these expectations, in addition to the physical harms noted above, Black people are more likely than white people to spend more time on their hair, spend more money on professional styling appointments and products, and experience anxiety related to hair.

Therefore, to comment on a straightened style may invoke the same harms, even if unknowing (or well-intentioned) on the part of the speaker. For example, even if an individual is permitted to style his or her hair in an afro under the law, if that individual chose to straighten or change their style, comments such as, "you look really nice with your hair straightened" may make the individual feel as if they do not fit in to the company's current culture because of that person's natural hair, and/or ultimately lead a reasonable victim to perceive a hostile working environment. In addition, instructing an Orthodox Jewish employee to shave his beard and cut his payot (sidelocks or sideburns in Hebrew) to accommodate an employer's grooming requirements sends a message that the employee's religious beliefs are not welcome within the employer's environment. If only Black employees or other protected classes such as religious communities face comments about how they choose to style their hair in the workplace or what they wear as an inherent part of their identity, an employer may be liable for permitting unlawful discriminatory practices.

In keeping with the Guidance and the religious garb bill, the first step in complying with the new laws is to revise any policies that run afoul of the NYCHRL and the NYSHRL by highlighting or prohibiting characteristics that only affect certain groups and not others. For example, policies that refer to specific hairstyles such as braids or locs as "unkempt" must be revised under New York City law. Denying an applicant employment because of that person's religiously-maintained uncut hair and turban violates not only the NYCHRL but the NYSHRL. Employers should include hair and religious garb discrimination in the training sessions already required under New York state law, and create standards of conduct that mirror those published by the New York State Division of Human Rights (NYSDHR) and the NYCCHR. Such standards of conduct should explain how hair and religious garb discrimination can have the same or similar adverse employment action as other types of prohibited conduct. For example, the NYSDHR's model sexual harassment policy describes examples of sexual harassment that include unwanted sexual advances, sexually oriented comments about a person's sexuality or sexual experience, stereotyping on the basis of someone's gender identity or sexual orientation, bullying, yelling and name-calling, all of which may create a hostile work environment. Comments about the hairstyles or religious attire or presentation of protected classes can foster similar unwanted advances or offensive comments about a person's identity, which the Guidance has now affirmatively tied to race and/or religion. Standards of conduct and training that focus on removing comments focused on the hair or religious styles of Black, Muslim, Jewish or other individuals in the workplace may help to alleviate perceptions of hostile work environments.

In sum, employers should be proactive in creating a workplace environment that does not treat individuals differently because of their hairstyle or religious garb. In addition to developing suitable written policies, such steps may include, among other things, (1) providing appropriate training to managers to ensure they are aware of the requirements with respect to hair and religious attire and contact HR or employment counsel with any questions; (2) refraining from outlawing or discouraging certain hairstyles, or requiring individuals to conform to gender norms in how they style their hair; and (3) focusing on preventing implicit bias where certain applicants or employees could be perceived as less "professional" because of a specific hairstyle or type of facial hair.

Daniel Turinsky, an employment partner in the New York office of DLA Piper, represents employers in litigation before federal and state courts, administrative agencies and arbitration panels. Janeen Hall, an employment associate, represents employers and senior executives in all aspects of employment-related litigation.