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Can My Employer Discriminate Against Me For My Hair?

by | Apr 1, 2022 | Employment Discrimination, Employment Law, National Origin Discrimination, Race Discrimination, Wrongful Termination |

Best Ohio Employment Discrimination Attorney Answer: Can my employer discriminate against me for my hair? Can my boss force me to cut my hair? Can my employer fire me for refusing to cut my hair? Is it race discrimination if my employer makes fun of my hair?

Unfortunately, discrimination takes on all sorts of shapes and sizes. We have discussed all different types of discrimination on this blog in the past. (See: Employment Law: What Is Race Discrimination?; The Spitz Law Firm’s Ongoing Fight Vs. Discrimination; and Can My Boss Fire Me Because I’m Overweight?). Today we thought we’d take a look at whether discriminating against an individual because of their hair could be considered a form of race or national origin discrimination.

There is a long history that ties race and national origin to hair. During the first documented slave trading in the 1400s, captured black people had elaborate hairstyles that traders shaved to demean them and strip the last vestiges of their identity. The slaves, predominantly from Africa, were forced to assimilate to European culture.  The aesthetic quality of a slaves’ hair started to impact the worth of slaves. Slave owners valued slaves with lighter skin and straight hair over slaves with darker skin and kinky hair. Slaves with “good hair” were allowed to work inside the house, while slaves with kinky or “nappy” hair were given outside work. As such, discrimination based on hair has a long history with African Americans.

Under both Title VII of the Civil Rights Act of 1964 and Ohio Revised Code § 4112.02(A), employees are protected from being treated differently because of their race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), national origin, age, and disability in all sorts of aspects of employment. In order to establish a case for discrimination, you’re going to need to show a few things:

  1. You are a member of one of these protected classes;
  2. You suffered an adverse employment action (Best Law Read: What Is An Adverse Employment Action?);
  3. You were qualified for the position you had; and,
  4. You were treated unfavorably compared to individuals outside the protected class or were fired and replaced by someone outside of the protected class.

What would a case for race or national origin discrimination of a hair policy look like? For that, let’s take a look at Hollins v. Atl. Co., a case decided in 1999 by the 6th Circuit Court of Appeals of the United States, the federal appeals court that resides over Ohio. 188 F.3d 652 (6th Cir. 1999).

Before we begin, I should let you know that in 2006, the standards for Title VII discrimination and retaliation claims changed after the Supreme Court of the United States ruled on Burlington North & Santa Fe Railway. Co. v. White, 548 U.S. 53 (2006). To make a long story short, the Burlington case made the requirements for establishing retaliation claims less stringent than a discrimination claim, where before 2006 the requirements were the same regardless of the claim. Therefore, since Hollins was decided prior to 2006 and used the old requirements, it is not technically still good law when it looks at that specific aspect of Title VII. However, the case still serves as an excellent window into the thought process of how the Sixth Circuit looks at hair policies and its relationship with race discrimination, the Court found in favor of the employee on the discrimination claim regardless, and there aren’t really any other cases that tackle this particular issue. With all that being said, lets dive in.

In Hollins, Eunice Hollins was an employee of Atlantic Company. After Hollins began wearing her hair differently, her employer told her that her hair was unacceptable because it did not meet the company policy and that it was “eye-catching.” Id. at 655. After returning to work the next day with the same hairstyle, Atlantic told her that if she did not want to change it, she should not work at Atlantic. Id. In January of 1996, Hollins went to work with a ponytail. Despite other white employees wearing their hair in this manner, a supervisor told her that the new hairstyle was too drastic and that she would need to change it. Hollins would continue to have her hairstyles criticized by Atlantic. Eventually, Hollins filed a claim for race discrimination and retaliation with the Equal Employment Opportunity Commission (“EEOC”) arguing that white women with similar hairstyles were not treated the same way that she was. (Best Law Read: Top Employment Law Attorney: Do Not File With The EEOC Without Doing This First; File With The EEOC Or Get A Lawyer? Call The Right Attorney; Should I Get A Lawyer To Help Me File An EEOC Charge?; and Should I File With The EEOC On My Own? Call The Right Attorney).

The case eventually was decided by a magistrate judge who stated that Hollins had failed to provide any evidence to establish a case for either discrimination or retaliation under Title VII. Hollins then appealed that decision to the United States Court of Appeals for the Sixth Circuit.

Let’s focus on how the United States Court of Appeals for the Sixth Circuit approached the “disparate treatment” aspect of the case. Since the court states that Hollins did not present direct evidence of race discrimination, she must show inferential proof that she was treated differently than her Caucasian coworkers when enforcing Atlantic’s hair policy. Id at 658. The Court held that in order for a claim of race regarding hair to survive a motion for dismissal, Hollins must establish that Caucasian employees with the same hairstyle were not reprimanded like Hollins was. The Court then concluded that Hollins had sufficiently done so and that the case should not have been dismissed. Specifically, the Court held:

Here, however, the Hollins and Toney affidavits assert that white women wore identical hairstyles—i.e., engaged in the identical, not just comparable, conduct—but received different treatment. Moreover, the affidavits establish that the relevant employees all dealt with the same supervisors; and Atlantic’s policy manual, as well as the testimony of plant supervisor Adams, establish that all Atlantic employees are subject to the same grooming standards. … The evidence establishes no apparent mitigating or differentiating circumstances to distinguish Atlantic’s treatment of Hollins as opposed to its treatment of the white women who wore identical hairstyles. Id at 660.

What can we learn from this case? We can learn that establishing a case for discrimination based on someone’s hair is possible but requires some sort of evidence of a hair policy that is implemented differently depending on the race of the individual it applies to. This may not apply to you or your circumstances. Unfortunately, this case is really the only one that has dealt with this issue in Ohio. The Courts have been surprisingly silent on this issue.

What can I do if I’ve been discriminated against at work because of my hair?

Best Employment Lawyer Answer: If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against or harassed based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our lawyers in Cleveland, Columbus, Detroit, Toledo and Cincinnati to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

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