Be careful that dress code does not discriminate

Following employers in New York being legally prevented from racially discriminating against employees due to hairstyles, UK employers may be questioning whether “hair discrimination” might be inadvertently occuring under their workplace dress codes!

The New York City Commission on Human Rights has released legally enforceable guidance prohibiting employersfrom discriminating against individuals on the basis ofhairstyles that are associated with African Americans including braids, Afros, cornrows and twists.

In the UK The Equality Act 2010 provides job applicants and employees with protection against a number of types of discrimination where this is related to certain protected characteristics. The list of protected characteristics includes “race” which has an extended definition covering colour, nationality and ethnic or national origin.

Workplace dress codes have recently come under fire for containing discriminatory aspects on the grounds of sex, most notably the debate of whether requiring females to wear high heels to reach the standard of “professional appearance” placed female employees at a greater disadvantage than male employees.

While dress codes are an important business tool to allow employers to convey a certain image or showcase their brand to customers, they have the potential of creating an adverse impact on certain groups of individuals, such as females, males or those of a certain race or religion. It is lawful for a dress code to contain standards for hair where these apply to all employees; for example, a requirement for hairstyles to be “professional” or “neat”.

As these requirements will apply across the workforce, there is little risk of an employee being able to prove that they were being treated less favourably than another. However if this includes a requirement for male employees to have short, tidy hair then this requirement is likely to fall foul of indirect discrimination laws where a workplace rule applies equally to all members of staff but places those with certain characteristics at a substantial disadvantage. The requirement for males to have short, tidy hair to achieve the professional standard raises the following discrimination concerns:

Indirect sex discrimination: as male employees are placed at a substantial disadvantage compared to female employees who are entitled to have long hair under the same appearance standard.
Indirect race discrimination: hairstyles such as dreadlocks, cornrows or Afros are likely to extend outwards and not be classed as a “short” hairstyle. Therefore, this requirement will place male employees of a certain race and ethnic origin at a substantial disadvantage compared to male employees who are white British.

Rather than placing any strict requirements on length or style, employers can monitor appearance by including the equivalent standard of “professionalism” to apply to hairstyles, and consider using an additional prohibition on extreme hairstyles, eg mohawks or unnatural hair colours, as these are not connected to any protected characteristics including gender, religion or race. It will then be for managers to effectively implement this policy and speak to employees, on a one-to-one basis, when it is deemed that they are failing to meet the appearance standard set out within the dress code.

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