Don’t Touch My Hair and Don’t Discriminate Because of It Either: New York City Bans Racial Discrimination Based on Hair

Photo Credit: The NappStar Signature Style, Nappstar, https://nappstarrocks.com/.

By: Lindsey Phillips
Research and Writing Editor, American Journal of Trial Advocacy

            On December 19, 2018, a black high school student athlete was given an ultimatum: He could either cut his dreadlocks or forfeit his wrestling match.[1] Right before his match, Andrew Johnson was told by white referee Alan Maloney that neither his hair nor headgear was in compliance with New Jersey State Interscholastic Athletic Association rules and regulations and that he would have to cut his hair immediately if he wanted to compete in his match.[2] Johnson’s coaches contested the referee’s ultimatum, but they did so to no avail.[3] After the injury-time clock was started, the Buena Regional High School varsity athlete allowed his dreadlocks to be cut so that he could compete. Johnson won his match.[4]

            Videos of the incident went viral and caused a substantial amount of controversy.[5] After learning about the incident, New Jersey Governor Phil Murphy stated, “No student should have to needlessly choose between his or her identity and playing sports.”[6] Jordan Burroughs, a 2012 wrestling Olympic gold medalist, said that he had never, in his 25 years of wrestling, seen an individual be required to cut his hair in order to engage in a match.[7] The four-time champion stated that what happened to Andrew Johnson “was a combination of an abuse of power, racism, and just plain negligence.”[8] Ava DuVernay, the first African-American female to have her film nominated for the Academy Award for Best Picture, tweeted, “I don’t just wear locs. They are a part of me. A gift to me. They mean something to me. So to watch this young man’s ordeal, wrecked me.”[9]

            Fortunately, a new announcement by the New York City Commission on Human Rights is geared toward preventing incidents like the one that happened to Andrew Johnson from occurring again. The New York Commission on Human Rights, which is the entity that enforces the New York City Human Rights Law, recently issued guidance, making it clear that racial discrimination on the basis of hair is an unacceptable violation of the New Yok City Human Rights Law.[10]

           The New York City Human Rights Law seeks to “assure that every individual within [the state of New York] is afforded an equal opportunity to enjoy a full and productive life” by outlawing discrimination in places of public accommodation and resort or amusement.[11] The law also applies to places of employment, educational institutions, places offering public services, housing accommodations, commercial spaces, and credit transactions.[12] The New York City Human Rights Law is independent of New York State statutes and federal laws, which are to be interpreted as floors that the City’s Human Rights law cannot fall below as opposed to ceilings that the local law cannot exceed.[13]

            In the guidance it issued in February of this year, the Commission declared that discrimination against African-Americans “includes discrimination based on characteristics and cultural practices associated with being Black, including prohibitions on natural hair or hairstyles most closely associated with Black people.”[14] The Commission recognized that negative perceptions concerning natural Black hairstyles “are often rooted in white standards of appearance and perpetuate racist stereotypes that Black hairstyles are unprofessional.”[15] In prohibiting discrimination based on Black natural hairstyles, the Commission explicitly included “locs, cornrows, twists, braids, Bantu knots, fades, [and] Afros” as styles that are protected under the New York City Human Rights Law.[16] The Commission even noted that, during slavery, white slave owners characterized Africans’ hair as dreadful.[17] This led to the term dreadlocks – a term that is stilled used today.[18] Whether individuals admit it or not, there is a long-standing belief, dating back to the 1800s, that natural Black hairstyles are unprofessional, unhygienic, and messy.[19] But, that belief is based on racism, and the Commission has now made that point unequivocally clear.[20]

            In its guidance, the Commission also included specific examples of policies and practices that violate the New York City Human Rights Law. Within the employment context, the following are examples of practices that are prohibited under New York’s law: “[t]elling a Black employee with locs that they cannot be in a customer-facing role unless they change their hairstyle [or] [r]efusing to hire a Black applicant with cornrows because her hairstyle does not fit the ‘image’ the employer is trying to project for sales representatives.”[21] In places of public accommodations, examples of prohibited discrimination include:

A private school has a policy prohibiting locs or braids. A public school athletic association prohibits a Black students athlete with locs from participating in an athletic competition because his hair is below his shoulders but allows white student-athletes with long hair to tie their hair up. A charter school informs a Black student that she must change her Afro because it is a ‘distraction’ in the classroom. A children’s dance company requires girls to remove their braids, alter their Afro, and only wear a ‘smooth bun’ to participate in classes.[22]

            The Commission’s guidance makes it emphatically clear that discrimination on the basis of natural hairstyles unique to Black people will not be tolerated in New York City. This will prevent events like the one that happened to Andrew Johnson from happening to other similarly-situated students in New York City. This country still may have a long way to go though. New York’s recent ban on this type of discrimination is believed to be the first of its kind in America.[23] It will be interesting to see whether other states and local municipalities follow in New York’s footsteps. Until then, New York’s recent announcement is the first integral step to ensuring that no other African-American students have to endure the discriminatory predicament Andrew Johnson was placed in.

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[1] Janelle Griffith, Referee’s Forcing Wrestler to Cut Dreadlocks at Match Sparks N.J. Civil Rights Probe, NBC News (Dec. 23, 2018, 3:06 PM), https://www.nbcnews.com/news/us-news/referee-s-forcing-wrestler-cut-dreadlocks-match-sparks-n-j-n951421.

[2] Id.

[3] Id.

[4] Id.

[5] Id. (“The incident . . . has drawn condemnation from New Jersey Gov. Phil Murphy, film director Ava DuVernay, Olympic wrestler Jordan Burroughs and the state ACLU, among others.”).

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] NYC Commission on Hum. Rts. Legal Enforcement Guidance on Race Discrimination on the Basis of Hair, N.Y.C. Comm’n on Human Rights 1, 1 (Feb. 2019), https://www1.nyc.gov/assets/cchr/downloads/pdf/Hair-Guidance.pdf.

[11] N.Y. Human Rights Law § 290 (McKinney 2019).

[12] Id.

[13] NYC Commission on Hum. Rts. Legal Enforcement Guidance on Race Discrimination on the Basis of Hair, N.Y.C. Comm’n on Human Rights 1, 3 (Feb. 2019), https://www1.nyc.gov/assets/cchr/downloads/pdf/Hair-Guidance.pdf.

[14] Id. at 1.

[15] Id.

[16] Id.

[17] Id. at 4.

[18] Id.

[19] NYC Commission on Hum. Rts. Legal Enforcement Guidance on Race Discrimination on the Basis of Hair, N.Y.C. Comm’n on Human Rights 1, 4 (Feb. 2019), https://www1.nyc.gov/assets/cchr/downloads/pdf/Hair-Guidance.pdf (“There is a widespread and fundamentally racist belief that Black hairstyles are not suited for formal settings, and may be unhygienic, messy, disruptive, or unkempt.”).

[20] Id.

[21] Id. at 8.

[22] Id. at 10.

[23] Evan Ross Katz, Doris “Wendy” Greene Helped Fight for New York City’s Ban on Natural-Hair Discrimination, Teen Vogue (February 28, 2019), https://www.teenvogue.com/story/doris-wendy-greene-natural-hair-anti-discrimination-ban.