Seyfarth Synopsis: New York City recently published regulations finalizing its prior guidance regarding race-based hairstyle discrimination, and also confirming that religious-based hairstyle discrimination, including for religious head coverings, is prohibited under the NYC Human Rights Law.  The Final Rule is effective as of January 30, 2021. 

Effective January 30, 2021, the New York City Commission on Human Rights (“Commission”) amended Title 47 of the Rules of the City of New York to provide example and add exceptions to clarify protections on the basis of race, creed, and religion, related to hair textures, hairstyles, including the use of head coverings, and hair lengths, which are commonly or historically associated with a particular race, creed, or religion. 

This Final Rule codifies much of the Commission’s enforcement guidance that was released in 2019 regarding race-based hairstyle discrimination and discussed here.  Many states and local jurisdictions have since adopted legislation to confirm that race-based hairstyle discrimination constituted race discrimination under their respective anti-discrimination laws (see, for example, here, here, and here).

The Final Rule also sought to codify that hair textures, hairstyles, head coverings and hair length can be elements of an individual’s religious practices such that discrimination based on hair can function as a proxy for religious discrimination and constitute a form of unlawful stereotyping. 

The Final Rule provides that, while a “legitimate health or safety concern” can provide a defense against a discrimination claim, “[s]peculative health or safety concerns may not be used as a pretext for religious discrimination.”  Therefore, the Commission will consider the following factors in determining whether a restriction or prohibition constitutes pretext for discrimination or is based on legitimate health or safety concerns:

1. the nature of the articulated health or safety concern;
2. whether the restriction or prohibition is narrowly tailored to address the concern;
3. the availability of alternatives to the restriction or prohibition; and
4. whether the restriction or prohibition has been applied in a discriminatory manner.

The Final Rule reminds employers that, even when a restriction or prohibition is predicated on legitimate health or safety concerns, employers must engage in the cooperative dialogue process and provide reasonable religious accommodations absent any legitimate undue hardship. 

Notwithstanding the possible defense for health or safety concerns, the Final Rule unequivocally states that “it is not a defense that a restriction or prohibition is based on customer preference or based on a perception that a person’s hair is ‘unprofessional,’ a ‘distraction,’ or inconsistent with a covered entity’s image.”  Thus, the Commission rejects the notion that a “professional image” can serve as an undue hardship defense against a religious discrimination claim based on religious hairstyle or head coverings.[1]  The Commission further rejects “trivial or minor losses of efficiency” as a possible undue hardship defense in this context.

Finally, the Final Rule provides the following relevant examples of religious hairstyle discrimination:

• An employer refusing to retain an employee who converts to or adopts a different faith and begins to wear religious headwear, such as a turban, hijab, or yarmulke, to partly cover or completely cover their hair.
• A customer service company that orders an employee to cut, restrict, change, or conceal their hairstyle or facial hair, in violation of their religious beliefs, to remain in a public-facing position.
• An employer who fails to take appropriate action when an employee who maintains unshorn facial or body hair in observance of their religious beliefs is repeatedly harassed by coworkers.
• A store that refuses to serve a customer who covers her hair with a religious head covering such as a hijab or sheitel.
• An employer refusing to grant an exception to the company’s grooming policy to a job applicant who maintains uncut hair for religious reasons, despite the absence of an undue hardship.
• An employer rejects a job applicant who wears a beard for religious reasons because the job requires use of a gas mask or other personal protective equipment (“PPE”) that does not provide adequate protection for persons wearing beards, if the employer could have provided an effective alternative for the gas mask or PPE without incurring an undue hardship.
• An employer refusing to allow a Muslim employee to grow a beard during Ramadan, as an exception to a general grooming policy, despite the absence of an undue hardship.
• An employer conditioning permission for an employee to wear religious headwear at work on the employee adding the company logo to the religious headwear, despite the employee’s religious objections and the absence of an undue hardship on the employer.

As a reminder, New York State previously passed legislation that similarly banned religious hairstyle discrimination (discussed here), though the State did not issue interpretive guidance or regulations regarding that legislation.  The NYC Final Rule therefore may provide a helpful roadmap for New York State employers in navigating these religious discrimination issues.

New York City employers should review their grooming or personal appearance standards, as well as training materials, to ensure all relevant policies comply with the Commission’s Final Rule.  Employers should also ensure their grooming or appearance policies are facially neutral and consider whether the Commission will find the application of these policies or other actions related to the hair of an applicant or employee to be discriminatory in a specific situation.

Seyfarth will continue to track and provide updates regarding these developments across the nation as they arise.  Please do not hesitate to reach out to your favorite Seyfarth counselors to discuss how to approach these new developments for your company.

[1] By contrast, some federal courts have credited an employer’s undue hardship defense to religious discrimination claims based on “professional appearance” in certain contexts.  See e.g., Webb v. City of Philadelphia, 562 F.3d 256 (3d Cir. 2009); Daniels v. City of Arlington, 246 F.3d 500, 506 (5th Cir. 2001).