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Protective Styles Need Protection
I am not my hair
I am not this skin
I am not your expectations, no (hey)
I am the soul that lives within
Good hair means curls and waves (no)
Bad hair means you look like a slave (no)
At the turn of the century
It's time for us to redefine who we be
You can shave it off like a South African beauty
Or get in on lock like Bob Marley
You can rock it straight like Oprah Winfrey
If it's not what's on your head, it's what's underneath, and say
–India.Arie "I Am Not My Hair"
This summer, California and New York became the first states to ban discrimination based on hairstyles. In particular, both of these states made it illegal to discriminate against individuals for wearing their "natural hair". It is baffling that laws must be passed to protect people who choose to be their "natural" selves. For people of color, the natural state of their hair often stands in contrast to the norms dictated by a society that upholds European features as the standard of acceptability and respectability.
In California, the Crown Act (Creating a Respectful and Open Workplace for Natural Hair), notes that, "The history of our nation is riddled with laws and societal norms that equated 'blackness'," and the associated physical traits, for example skin, kinky and curly hair to a badge of inferiority, sometimes subject to separate and unequal treatment."
In signing the ban on discrimination based on hair into law, New York Governor Andrew Cuomo acknowledged that, "For much of our nation's history, people of color—particularly women—have been marginalized and discriminated against simply because of their hairstyle or texture." Cuomo went on to assert that, "By signing this bill into law, we are taking an important step toward correcting that history and ensuring people of color are protected from all forms of discrimination."
The California and New York laws both prohibit discrimination on the basis of traits historically associated with race, including "hair texture and protective hairstyles". Both states' laws also explicitly point to the hairstyles of "braids, locks, and twists" as being protected from discrimination.
As an attorney, and a Black woman whose hair texture is the direct opposite of naturally straight, who has worn every hairstyle imaginable (and in every color), and who recognizes that my hair is such a big part of my identity, I applaud the laws of California and New York. While I have used chemicals to alter my hair color, and have added hair extensions in order add length to some of the styles I wear, I have not had my hair chemically straightened in over twenty-five (25) years. Moreover, the hairstyles that I wear are most often identified as being unmistakably "Black". I wear braids. I wear twists. I wear my naturally curly Afro. I can remember preparing for interviews at law firms, and wondering if I should try to tame my hair by pulling it back into a tight ponytail. I am still frequently asked if I really wear braids into court. I have had people ask if I worry about my clients' reactions to my natural hairstyles.
For as much excitement as I have about these laws, there is still much work to be done. California and New York are the only states that have made natural hair a "protected" category. Federal law still offers no such protections. Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, national origin, sex, and religion does not specifically protect hair.
It seems logical that the prohibitions against race discrimination should address hair—especially since Black people are disproportionally discriminated against because of their hair textures and styles. However, for some strange reason, Title VII has not been found to explicitly protect make the link between race and hair.
In a 2017, the 11th Circuit Court of Appeals found that a company that refused to hire a candidate who wore dreadlocks did not constitute racial discrimination. The case, Equal Employment Commission v. Catastrophe Management Solutions, involved a Black job applicant who applied for and was offered a job. However, the applicant was told that she would need to change her current hairstyle of dreadlocks. The refusal to change her hairstyle meant the rescission of the job offer. The Court found that the company's ban on dreadlocks was "based on a race-neutral policy that applies with equal force to men and women (and hairstyles) of all races." The Court also, notes that it was essentially refusing to do what Congress and no other court had done: "update the meaning of race in Title VII to reflect its increasingly nebulous (and disputed) boundaries."
This society is, sadly, nowhere near reaching a level where we are all truly judged on the content of our characters or our actual abilities. As a result, the laws the purport to prohibit discrimination cannot overlook those characteristics, features, and traits that are inextricable from or inevitably associated with a person's race.
California and New York have set the stage, and lawmakers in other states and at the federal level need to get on board. Natural hairstyles, which are often referred to or used as "protective" styles—need legal protection. When India.Arie sings, "I am not my hair" she is cleverly acknowledging that for, many of us, our hair will dictate the treatment that we receive. Our current laws also need to make this acknowledgement, and offer adequate protections.
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