New York has become the second state to include hairstyles within the definition of race for purposes of the state’s anti-discrimination law. Last week, California became the first state to ban such discrimination.
The New York State law amends the definition of “race” to mean “traits historically associated with race, including but not limited to, hair texture and protective hairstyles.” This includes, but is not limited to, “such hairstyles as braids, locks, and twists.”
While Maryland law already prohibits discrimination on the basis of race (and other protected classes), Maryland has yet to pass legislation similar to California and New York’s to explicitly include hairstyle within the definition of race for purposes of discrimination.
Plaintiffs in Maryland courts have not always had success raising claims that comments about their hair constituted race discrimination. For instance, in King v. Eastern Shore Water, LLC, 2012 U.S. Dist. LEXIS 107300, at *52-53 (D. Md. July 31, 2012), the district court rejected four African American female plaintiffs’ argument that the business owner’s inquiries whether their hair was real or fake and statement that they could not use the internet “to look up information about hair extensions or hair weaves” were neither race-based nor motivated by racial animus. The court reasoned that (1) the comments did not explicitly refer to the plaintiffs’ race; (2) the comments did not include the words “black” or “African American”; (3) it was not shown that the business owner did not make similar comments to any white women with similar, “unusual” hairstyles; and (4) the plaintiffs did not demonstrate why they believed the comments were race-based.
In coming to its conclusion, the court in King relied on its reasoning in Fisher v. Md. Dep’t of Pub. Safety & Corr. Servs., 2010 U.S. Dist. LEXIS 68772 (D. Md. July 8, 2010), which the Fourth Circuit affirmed. There, the district court found no racially hostile work environment based on evidence that a plaintiff got a new “weave” hairstyle and was subsequently teased by co-workers about her hair texture and asked if her hair was real or fake. One coworker even pulled the plaintiff’s hair so hard that she required medical care.
Notably, the court in Fisher reasoned, “[i]t appears that any harassment that took place was motivated by Plaintiff’s hairstyle, not her race.” Such reasoning, it seems, would likely be upended by a hairstyle discrimination law similar to California and New York’s.