Discrimination remains both topical and a contentious issue in the workplace and at society at large. The death of George Floyd and the ensuing Black Lives Matter protests during the summer of 2020 fuelled the discussion about the need for widespread change. In response, we have seen an increase in the facilitation of anti-racism, micro-aggression unconscious bias training, and an openness to engaging in difficult discussions which is a positive step in the right direction.
Whilst both employers and employees are aware that conscious acts of overt racism in the workplace are unlawful, less obvious and sometimes unconscious discriminatory behaviours in the workplace have long infiltrated individual behaviours as well as company policies so much so that they have gone unnoticed for the majority, despite being a significant source of stress and upset for those on the receiving end. Hair discrimination is an example of such discriminatory practice and discussion around this topic has gained much needed traction following the legal challenge brought by school pupil Ruby Williams (funded by ECHR) against her school after repeatedly being refused entry into school, or sent home, while in years 10 and 11 because the school had a policy which banned big afro hairstyles, which specifically stated that hair must be of ‘a reasonable size’. Similarly, a high court case held that Gregory’s Catholic Science College in Kenton, policy prohibiting cornrows was indirect discrimination on grounds of ethnic origin.
What is hair discrimination in the workplace?
Hair discrimination is bias against those with hairstyles associated with their racial, ethnic and cultural identities. Hair discrimination in the workplace can affect a range of people from different backgrounds, and particularly those from marginalised groups, however Black employees regularly and disproportionately find themselves battling exclusionary workplace dress / appearance policies.
According to a report published by Halo, a collective working to eradicating hair discrimination, 93% of Black people in the UK have experienced hair discrimination, including hair touching without consent, and 1 in 5 Black women felt the need to straighten their hair for work. The Halo Collective also reports that some Black employees are forced to choose between their career on the one hand, and their cultural identity and hair health on the other. Those who attempt to maintain their cultural identity report, according to the Halo collective, being humiliated at work because their hair was deemed unprofessional, unruly, unkempt or a distraction to others.
Additionally, it is not unusual to hear Black and minority employees report not being able to bring their full selves to work. In the hair context this may involve undertaking self-censoring measures to fit into the euro-centric ideals such as straightening their hair, wearing wigs, cutting their dreadlocks which are not typically deemed to fit into the construed ideal of ‘professional image’. Naturally this, has a devastating impact for individuals where hair is centre to identities, cultural heritage and belief.
Unlike certain parts of the US, there is no UK law which explicitly prevents employers prohibiting certain forms of hair styles. For example, California Senate Bill No. 188, named the Crown Act, states dress codes and grooming policies that ban natural hair “including afros, braids, twists and locks” have a disparate impact on Black individuals.
In the UK, whilst employers can have their own dress codes for work and implement certain standards that can include acceptable hairstyles, this must be considered against the backdrop of the Equality Act 2010 under which it is unlawful for an employer to:-
- Directly discriminate by treating job applicants or employees more favourably than others because of race / religion or nationality.
- Indirectly discriminate by applying a provision, criterion or practice (such as a dress code policy) which is applied universally to the workforce regardless of their protected characteristics (e.g race/ religion /nationality), but have the an exclusionary impact or are more difficult to comply with for those who possess those specific protected characteristics. Employers will need to be aware that employees can bring actions for indirect discrimination (whether the discrimination was intentional or otherwise), which is a risk where what is deemed to look professional (as reflected in dress code policies) has often been considered from a euro-centric lens.
Employers will be required to show a legitimate aim and explain how such a policy is proportionate and be able to justify the same. In addition to the Ruby Williams case, there have been a number of legal challenges in the educational sector including the case of It is very unlikely that customer preference would be held to be objective justification for an indirectly discriminatory hair or appearance policy.
Harassment and Victimsation
- Subject a job applicant or employee to harassment related to race.
- Victimise a job applicant or employee because they have made or intend to make a race discrimination complaint under the Act.
Practical tips for Employers
Aside from the risk of indirect discrimination claims being brought by employees, there is substantial evidence demonstrating the benefits of a diverse workforce.Of late, there is no doubt that many employers are striving to become more diverse and inclusive and enhance the recruitment, progression and retention of disadvantaged employees (including Black employees). A natural outcome of this is that there will be more discussion around identity and inclusivity, of which the importance of hair and experiences of hair discrimination in the workplace may be a significant feature.
Here’s what employers can do to educate themselves on this important topic:-
Listening to Employees – It is clear from the statistics presented by the Halo Code, many Black employees experience disadvantage in the workforce due to their hair and hairstyles. Listening to employees’ experiences and the importance of their hair to their identity and taking their concerns and recommendations on board will no doubt be invaluable in tackling discrimination experienced by employees and changing biases around Black hair and professionalism.
- Review your personal appearance at work policy – Employers can also review and amend their policies to ensure they are not discriminatory, before any legislative change comes into effect . Employers should consider obtaining views of affected employees (and referring to the Halo Code) when drafting / updating their policies to ensure that the professional standards set regarding appearance do not discriminate and are inclusive.
- Training – Employers can also implement equality diversity and inclusion, anti-racism and unconscious bias training and regular refreshers of the training. Anti-racism training can assist with dealing with specific issues experienced by employees i.e. unwanted comments / touching from colleagues.
- Signing up to the Halo Code – For employers seeking to be more diverse and inclusive and / or are committed to addressing any issues they their organisations may have with recruitment, retention or progression of Black employees then signing up to the Halo Code may be helpful in showing their commitment, in combination with some or / all of the measures mentioned above subject to the organisation’s needs. Many employers including Dove, Unilever, Hertfordshire City Council have signed up to the code so far. Even where employees may choose not to adopt the code, it is no doubt a useful starting point to help employers to gain an understanding of the issues and the importance of hair to the identity of Black employees and how discriminatory policies can impact a group of employees’ well-being in the workplace.
To discuss any issues arising from hair discrimination in the workplace or other discrimination and issues faced by employers or employees, please contact Ayisha Akamo or the gunnercooke Employment team.