By: Jayna Genti
During the 2020 legislative session, Virginia became the first southern state not only to ban LGBTQ discrimination, but also bar hair discrimination across the Commonwealth. This makes Virginia the fourth state behind California, New York, and New Jersey to do so. As reported in the March issue of the Mid-Atlantic Employment Law Letter, Montgomery County, Maryland (but not the state itself) also has prohibited discrimination based on a person’s hairstyle.
The New Law
The new Virginia law specifically expands the Virginia Human Rights Act (VHRA) to prohibit discrimination based on characteristics historically associated with someone’s race and/or culture. Under the new law, discrimination “because of race” or “on the basis of race” will now encompass bias that stems from “traits historically associated with race, including hair texture, hair type, and protective hairstyles such as braids, locks, and twists.”
The reason for the law is simple according to Delegate Delores McQuinn, who sponsored the legislation, “A person’s hair is a core part of their identity. “Nobody deserves to be discriminated against simply due to the hair type they were born with, or the way in which they choose to wear it. The acceptance of one’s self is the key to accepting others.”
In signing the legislation into law, Virginia Governor Ralph Northam echoed Ms. Quinn’s remarks: “It’s pretty simple—if we send children home from school because their hair looks a certain way, or otherwise ban certain hairstyles associated with a particular race—that is discrimination.” The Governor added: “This is not only unacceptable and wrong, it is not what we stand for in Virginia. This bill will make our Commonwealth more equitable and welcoming for all.”
Who’s Covered and When
Like other laws passed in the 2020 General Assembly session, the ban on hair discrimination will take effect on July 1. Although the VHRA currently applies only to employers with six to14 employees, that limitation also will change as of July 1, 2020. Under the Virginia Values Act, also passed by the Virginia General Assembly this term, the reach of the VHRA now will cover all employers with six or more employees.
To make sure you are in compliance with the new law banning hair discrimination, you should act now to assess your workplace grooming and dress standards. You still continue to enforce non-discriminatory appearance and grooming policies, but make sure those policies don’t prohibit certain types of hairstyles, such as braids, locks and twists. If you do, you could be charged with using those policies as a proxy for, or to facilitate, discriminatory practices, such as gender or racial discrimination.
An exception may arise if restrictions on hairstyle choices are necessary for certain specific safety reasons. But, even if you need to maintain certain grooming standards for safety reasons, be careful in the wording of the standard. For example, if long hair poses a safety hazard in the workplace, avoid listing specific types of hairstyles that pose a risk. Instead, simply state that hair must be shorter than a certain length or secured at all times.
Determining whether you have crossed the line in imposing certain grooming and appearance standards can be tricky to determine. When in doubt, it always is a good idea to consult with experienced employment counsel to assist you in charting this new and uncertain area of the law.
Jayna Genti is an associate in the office of DiMuroGinsberg, P.C. She can be reached at firstname.lastname@example.org.