Multiple jurisdictions throughout the country have amended state and local laws to specifically cover discrimination on the basis of hair and appearance.
In Nebraska, the Unicameral amended the Nebraska Fair Employment Practice Act to include the following definitions:
(19) Race is inclusive of characteristics such as skin color, hair texture, and protective hairstyles; and
(20) Protective hairstyles includes braids, locks, and twists.
Additional provisions as part of the same amendment established the following:
(3) It shall not be an unlawful employment practice for an employer to enact any bona fide health and safety standard that regulates characteristics associated with race if the employer demonstrates that:
(a) Without the implementation of such standard, it is reasonably certain that the health and safety of the applicant, employee, or other materially connected person will be impaired;
(b) The standard is adopted for nondiscriminatory reasons;
(c) The standard is applied equally; and
(d) The employer has engaged in good faith efforts to reasonably accommodate the applicant or employee;
Neb. Rev. Stat. § 48-1108(3). South Dakota and Iowa have not yet enacted similar legislation.
To the extent there are safety concerns regarding protected hairstyles in the work environment, employers can establish measures to help manage these new requirements. The Nebraska statute uses the term “reasonably certain” as a condition to establishing a standard that is based on health and safety concerns. As a general matter, health and safety concerns are compelling support for establishing legitimate nondiscriminatory reasons for an adverse employment action (such as a refusal to accommodate a hairstyle that could be a threat to an employee’s safety).
As a result, employers in certain industries may have the discretion to establish standards that manage safety concerns implicated by allowing the protected hairstyles in the workplace. To the extent employers can utilize existing standards that are applicable to them, the support for a policy can be strengthened. Evidence could include the following:
- documentation regarding prior workplace accidents;
- industry standards regarding specific workplace safety issues that need to be addressed;
- information/warnings from equipment manufacturers recommending particular safety measures;
- applicable OSHA or other regulatory standards.
As a general matter, if not already accomplished, employers will want to consider conducting hazard assessments of all safety concerns in the workplace, whether related to the issues of accommodating hair or not. This is a matter of OSHA compliance, regardless of the specific hair issue. If appropriate, policies can then be established to protect employee health and safety on all issues.
At the federal level, the House of Representatives has passed similar legislation, but it is not clear that the bill will survive in the Senate. If the bill makes it to his desk, President Biden has said he will sign it.
However, regardless of legislation, the federal EEOC has taken the position that discrimination on the basis of hair is already prohibited by existing law. As a result, there is some threat of litigation even if an employer’s state or local jurisdiction has not taken action to enact amendments similar to Nebraska’s.