Q- My client has read in the news that having a dress code which place restrictions on hairstyles may be discriminatory, is this right?
A-It is likely that your client is referring to the recent decision of the New York City Commission on Human Rights, who in efforts to tackle racial prejudice, have prevented organisations from banning specific hairstyles in their company. Although this relates to US law, it would be a good idea for your client to apply the same principle to their own dress code and consider where certain requirements may be discriminatory.
Under the Equality Act 2010, it is unlawful for your client to discriminate against staff on the basis of a protected characteristic. This means individuals cannot be treated any less favourably or placed at a disadvantage due to personal factors such as their race, age or gender. Therefore, whilst your client may want to use a dress code to maintain a certain image at work, they should be wary of how this could have an adverse impact on certain individuals.
Recent government guidance on dress codes released in 2018 confirmed that although rules for men and women may differ, the standards imposed must be ‘equivalent’ and any less favourable treatment ‘could’ qualify as discrimination.
Therefore, on the topic of hairstyles, your client is advised to tread carefully and avoid any unnecessary restrictions. For this reason, many employers simply ask that staff keep their hair professional and tidy, avoiding the potential issues that can occur when particular styles are forbidden.
Alternatively, your client could choose to place restrictions on certain ‘extreme’ styles, such as Mohawks or unnatural highlights. However, they should refrain from placing similar restrictions on the length of men’s hair, or styles such as afros or dreadlocks, as these can be associated with the protected characteristics of gender, religion or race.
In these situations, your client may leave themselves open to claims of indirect discrimination and it is highly unlikely they would be able to objectively justify why banning certain hairstyles is a proportionate means of achieving a legitimate business aim.
In summary, although it is not always discriminatory to place rules around how staff wears their hair at work in the name of professionalism, clients who do should review their existing dress codes and remove any reference to hairstyles that can be associated with a protected characteristic.