I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident, that all men are created equal…I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”
It’s been almost 60 years since the Reverend Dr. Martin Luther King, Jr. recited these historic words, sparking the Civil Rights Movement and eventually new laws providing workplace protections based on protected class status such as Title VII.
The American workplace has become increasingly diverse, and most employers understand that it’s illegal to discriminate based on protected class. However, discrimination is not always overt and workplace policies seemingly crafted for well-intended business reasons may result in unintended race discrimination.
So, as we remember Dr. King, it’s worth highlighting two new types of laws that are specifically aimed at combating disparate impact discrimination against black workers or other minority groups.
Hair Discrimination Laws
Many employers have a legitimate business interest in developing and implementing personal appearance policies regarding hairstyle and grooming. These policies may require employees to look clean, neat and professional for health and safety reasons or to project a certain public image.
However, employers must tread carefully if such policies prohibit certain hairstyles or require employees to wear a particular hairstyle. While seemingly neutral, such policies may have a disparate impact on black workers and amount to race discrimination.
A number of states and localities have enacted hairstyle discrimination laws in recent months, including:
• New Jersey;
• New York;
• Cincinnati, Ohio; and
• Montgomery County, Maryland.
These laws expand the definition of race to include discrimination based on traits historically associated with race, including hair texture and protective hairstyles, such as braids, dreadlocks and twists. They also generally implement the following measures:
• Protect black hairstyles as racial characteristics because they are an inherent part of black identity;
• Prohibit employers from taking adverse action against an employee or applicant based on hairstyle;
• Prohibit employers from banning braids, locks, twists and other hairstyles historically associated with race; and
• Prohibit employers from requiring employees to alter the state of their hair (i.e., straighten or relax) to conform to the company’s appearance standards.
As a result, employers may not restrict natural hair or hairstyles associated with black communities or request that employees or applicants change or hide their hairstyle to promote a certain corporate image, either because of customer preference or based on abstract health or safety concerns.
If legitimate health or safety concerns exist, it is generally best practice to consider alternative measures such as:
• The use of hair ties, hair nets, head coverings; or
• Alternative safety equipment to accommodate various hair textures and hairstyles.
In light of this trend consider reviewing and amending any workplace appearance and hairstyle policies to make sure they do not result in unintended discrimination, and training supervisors and those who recruit and hire on the parameters of these news laws to avoid unintentional discrimination.
Criminal History Laws
While employers have legitimate business reasons for conducting background checks and ensuring safe and secure workplaces, they must ensure that recruiting and hiring policies and practices do not adversely impact black workers.
Dollar General and the EEOC recently settled a Title VII lawsuit alleging race discrimination with respect to the use of criminal history information in the hiring process that had a disparate impact on black applicants. The lawsuit claimed Dollar General illegally refused to hire job applicants who failed background checks based upon a matrix identifying specific crimes and the specific time elapsed since the conviction instead of conducting an individual assessment and evaluating whether the exclusion was related to the job in question and consistent with business necessity.
To this end, numerous states and localities in recent years have enacted ban the box laws affecting private employers, in part to prevent disparate impact discrimination. Those recently enacting such measures include:
• New Mexico;
• Columbia, South Carolina; and
• Westchester County, New York.
In addition, a federal ban the box restriction was just signed into law and will be applicable to federal agencies and federal contractors in December 2021.
Among other things, ban the box laws prohibit employers from:
• Inquiring into or considering an applicant’s conviction history until after the applicant has received a conditional offer;
• Asking an individual to provide criminal history on an initial job application; and
• Stating in a job ad that a person with a criminal record may not apply.
These laws also may address at what stage of the recruiting and hiring process an employer can inquire about criminal history, provide applicants with background check disclosures and authorization forms, and conduct a criminal background check.
Most do contain exceptions for certain types of positions, such as law enforcement and child care. Further, many laws allow employers to explore criminal backgrounds after the extension of a conditional job offer and the opportunity to explain any criminal record.
In essence, such laws prohibit employers from automatically excluding individuals with a criminal background from consideration without providing them with the chance to explain, and without regard to whether the criminal history has any bearing on the present position the individual is applying for.
In light of the ban the box trend, employers should review and revise their employment applications and interview questions to remove inquiries with respect to criminal history.
They also should consider at what stage and in what manner an employer may explore criminal history; and make sure to evaluate each candidate based on merit, skills and qualifications.