An African American employment lawyer is rocking workplace dress code protocols with a new book on the subject of natural hair in the workplace. Los Angeles based Tracy Sanders, Esq., is speaking up for men and women with ethnic hair, while also embracing Title VII of the U.S. Civil Rights Act of 1964.

In her new book, “Natural Hair in the Workplace: What are Your Rights?”, Sanders discusses discrimination many African Americans face in our restriction-laden corporate environment. Speaking primarily to women, who are most affected by such constraints, Sanders tells women it is within their rights to sport a natural, ethnic hairstyle — though she cautions against carelessly flouting the company dress and grooming code.

Employers have the right to declare and enforce a code for their employees that specifies certain types of dress and grooming that are appropriate to the work environment. However, according to Sanders, these regulations must not violate workers’ right to express their authentic ethnic identity. She believes that right is protected by Title VII of the U.S. Civil Rights Act of 1964.  In New Jersey, that right would be amplified by the Law Against Discrimination.

In addition to natural hair for African Americans, the argument goes that the law should protect employees’ right to wear ethnic or religious head coverings, skirts of a certain length, beards that are untrimmed, etc. – except when the workplace requires more restrictive attire or grooming for reasons of health or safety.  An example of an appropriate safety restriction on attire is an assembly line that could catch and grab a worker’s clothing, if long and flowing.  An example of an appropriate restriction on personal grooming could be a hairstyle that cannot be contained within a food line worker’s hairnet or a hospital worker’s surgical cap.  Similarly, a reasonable accommodation should be made for workers with conscientious religious beliefs, unless health or safety restrictions are involved.

Sanders points out that natural hair has made a comeback recently, as African American men and women have (A) embraced their ethnic roots and (B) become more represented in the corporate workplace. Sanders cautions there is a delicate balance that women must strike, between embracing the ethnic look and disregarding workplace rules.  That is, women may have the right to express themselves, but they could end up in a fight with the corporate culture and code, and on the short end of a wrongful discharge claim.

In a recent case from across the country, a federal appeals court ruled that banning an employee from wearing her hair in dreadlocks is not racial discrimination.

In a 3-0 decision, a panel of judges in the 11th Circuit U.S. Court of Appeals, which covers district courts in Alabama, Florida, and Georgia, dismissed a case brought by the Equal Employment Opportunity Commission against a company that refused to hire a woman because she wouldn’t cut off her dreadlocks.

Chastity Jones applied for a job at Catastrophe Management Solutions in 2010 and was initially hired, but the role came with a condition: CMS told Jones she had to cut off her locks to comply with the company’s race-neutral grooming policy. She refused to do so and CMS rescinded its offer.

The Equal Employment Opportunity Commission filed suit on Chastity’s behalf,  alleging that CMS’s conduct constituted discrimination on the basis of race, in violation of Title VII of the Civil Rights Act. The trial court dismissed the complaint, finding it did not plausibly allege CMS’s intentional racial discrimination against Chastity. The 11^th Circuit affirmed the dismissal, stating, in pertinent part:

“[O]ur precedent holds that Title VII prohibits discrimination based on immutable traits, and the . . . complaint does not assert that dreadlocks—though culturally associated with race—are an immutable characteristic of black persons. . .

[N]o court has accepted the EEOC’s view of Title VII in a scenario like this one, and the allegations in the . . . complaint do not set out a plausible claim that CMS intentionally discriminated against Ms. Jones on the basis of her race.”

The U.S. Supreme Court in 2015 decided that a Muslim woman’s wearing of religiously mandated headgarb was a protected right under Title VII, despite the private company’s policy against employees’ wearing of hats and scarves on the job.  EEOC vs. Abercrombie & Fitch, 575 U.S. ___ (2015).

Chastity’s claim of religious need to wear her hair in a certain fashion, if conscientiously made, could have trumped CMS’s race-neutral grooming policy.  Since that claim was never made, the employer’s right to enforce its grooming policy outweighed Chastity’s desire to wear her hair the way she wanted to.  It is unclear whether New Jersey courts would make the same determination under our Law Against Discrimination.  It is also unclear what the U.S. Supreme Court would do on the facts of Chastity’s case, if it were presented to the High Court on race discrimination grounds.

Sanders’s new book will keep the legal conversation alive and engaged as the American corporate landscape increasingly diversifies.

Unions also could play a role in that conversation, as it is easier for workers to assert their rights collectively than it is for non-unionized workers, who comprise the overwhelming majority of the workplace, to handle on a case by case basis.

In sum, employees should have the right to express their ethnicity in the workplace, as long as no health or safety issues are presented by such expression.

If you believe you have suffered from workplace discrimination or retaliation, the please contact the employment law attorneys at Hanan M. Isaacs, P.C., today.

We represent workers.  Call our law offices at 609-683-7400 or contact us online to set up a near term and reduced fee initial consultation at our Central Jersey location in Kingston.  We will listen to your facts, advise you about the law, and guide you on the best pathway to vindicate your rights and interests.  Call today.  You will be glad you did.