“My hair type is also linked to my race”: Discriminatory Dress Codes

Cree Ballah, a 20 year old working at a local Zara, recently went public with allegations that management made discriminatory comments about her hair. Managers told Ms. Ballah, who identifies as biracial, that her hair didn’t fit with the “clean professional look” the store required and even tried to “fix” her hair in the busy mall.

Ms. Ballah told CBC “My hair type is also linked to my race, so to me, I felt like it was direct discrimination against my ethnicity in the sense of what comes along with it.”

Unfortunately, Ms. Ballah’s experience doesn’t appear to be an unusual one for Ontario workers. Just last month Akua Agyemfra, a server at a local Jack Astors reported to CBC that an assistant manager asked her about her hair in her job interview. Ms. Agyemfra says was later sent home from a shift for wearing her hair in a bun at work, an issue Ms. Agyemfra similarly linked to race saying “a lot of Caucasian people don’t really understand”.

As these stories and a popular tweet earlier this month showed, perceptions about professionalism, race and hair continue to affect women of colour in the workplace.

Discriminatory Dress Codes

Since I last wrote on the subject of discriminatory dress codes, the Ontario Human Rights Commission has called on employers to end sexist, gender-specific dress codes.

Neither the Commission nor the Ontario Human Rights Tribunal appears to have dealt directly with the issue of race and hair in workplace dress codes in past policy statements or decisions.

However, decisions from other Canadian jurisdictions confirm that comments like the ones Ms. Ballah and Ms. Agyemfra endured might amount to illegal discrimination on the basis of race, ethnicity or colour at work.

For example, in a 2014 Nova Scotia Human Rights Board of Inquiry decision a woman complained that she experienced racist and sexist discrimination at work, referencing (among other allegations) incidents in which managers commented negatively on her dreadlocks or touched her hair. The Board agreed that this conduct was disrespectful, offensive and “related to her race”. Together with other evidence, the manager’s comments about the employee’s hair grounded the Board’s ultimate finding that the complainant had been subjected workplace discrimination and harassment on the basis of her race. The employee was awarded $8,000 in general damages.

As with any workplace rule about dress or appearance, rules or requirements for employees’ hair may be appropriate in some circumstances even if there is a relationship between the employee’s hair and their race. For example, the British Columbia Human Rights Tribunal dismissed a complaint by a woman who worked as an “extra” or background performer that she had been discriminated against by a talent agency on the basis of her race and colour when it chose not to represent her. In that case, the Tribunal accepted that a performer’s appearance could be a real job requirement in the actor-agency relationship.

Other employers might have legitimate safety or hygiene concerns that could reasonably limit acceptable at-work hair styles. For example, your employer might be in the right to ask you to tie your hair back or wear a hair net if there’s a risk it could be caught up in machinery or get into food products.

Outside of the world of television casting or workplaces with real safety concerns, dress code rules or comments about employee appearance that have an adverse impact on racialized workers would likely be a lot harder to link to reasonable, real job-duties and, therefore, a lot harder to defend at the Human Rights Tribunal. Regardless, as the Nova Scotia Board reminds us, you really shouldn’t touch your employees’ hair or bodies without consent anyway.

DECISIONS DISCUSSED:

Cromwell v Leon’s Furniture Limited, 2014 CanLII 16399 (NS HRC)

von Rotsburg v. Local Colour Talent and another, 2012 BCHRT 36 (CanLII)

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