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A Case Study in Privilege: Black Hair Discrimination and Legalization

Legalizing What’s Right vs. Prohibiting What’s Wrong

What is privilege?

My equity consultant friend has a simple but powerful description for systemic privilege: we have it when we don’t have to think about things that are barriers or problems for other people.

For example, as a woman less than 5’ tall, I never worry about legroom on an airplane, unlike most adults. But I always stress about whether I’ll find a flight attendant or passenger kind enough to lift my carry-on into and out of the overhead bins. When it comes to diversity, our brains are designed to be acutely aware of our own barriers, but oblivious to others.

That’s why the goal of my podcast, articles, and newsletters are to “change our lens”, so we can literally see what we’ve been blind to before.

Photo of a black woman with natural curly hair, on a pink background
Photo by Jessica Felicio on Unsplash

I witnessed a real life study in privilege / unprivileged recently, when anti-racist consultant Janice Gassam Asare posted about legalizing black hair.

In less than 24 hours subsequent to the post, some people (who appeared to be white) made these comments:

“Is the term legalize the best choice here? Isn’t Accept the better term? I don’t think there are laws on the books about hair styles. Acceptance and tolerance are social aspects that I think should be applied here.”

“I’m confused. Why would your hair be a problem in the workplace - it’s professional that everyone is looking for so…..long, short, braided, bald, etc. I guess I’ve been fortunate in the places I worked that we didn’t have policies of this nature. I can understand standards, we have them everywhere and for good reason; i.e. food service would be an example where dreads may need to be put up for sanitary reasons. Some day we’re all going to decide it’s time to move on from all of this…”

“Illegal? Hair? In 2022, who is stupid enough to care what someone's hair style is? Are there cases today of people being discriminated against due to hair styles?”

“Crazy isn't it? But it happens. Here in Canada, not so much.”

“Where is it illegal? I really am interested to find this out. I am Canadian and there are black people in Canada and I have never heard of this. The only restrictions that I am aware of regarding hair in the workplace are health & safety regulations. Please tell me where black hair is illegal in the workplace.”

“I'm Canadian too, and I haven't heard of any law in Canada regarding hair.”

Janice had to edit her post to add this explanation:

"For those of you who are confused and never knew hair discrimination was a thing...Google "The Crown Act." Race-based hair discrimination IS NOT federally protected in the United States. There are only 14 states that have protections against hair discrimination. The other 36 states have no protections. So this shirt is a call to action for us to adopt more protections against race-based hair discrimination in the United States AND BEYOND! If you are one of the people in the comments section doubting or questioning whether people *actually* experience hair discrimination simply Google "hair discrimination lawsuits" and see the thousands of search results and lawsuits that come up dating back to the 80s and 90s and currently today. Just because you haven't witnessed something personally doesn't mean it does not occur."

Black hair discrimination: 36 American States say it’s legal

Inequality isn’t equal. Privilege exists even within discrimination.

I’m a racialized woman, but no one has ever asked or tried to touch my hair as though I was an animal at the petting zoo, nor has anyone asked me to change my hair to look more “professional” at work. The most difficult hair challenge I faced was whether my red highlights were too bright for my conservative workplace.

I thought I knew that black women faced discrimination against their hair, but I had no idea how pervasive, oppressive and invasive black hair discrimination is. And I never thought about it from a black man’s perspective until I met Walter Gainer II and heard his podcast, BossLocks.

Photo of Walter Gainer II on a yellow background, quoting him as saying: "If they have a problem with your hair, they're more than likely going to have a problem with you being Black as well." - Changing Lenses Podcast, Ep302: Loc'd Out at Work
Quote from Changing Lenses Podcast episode 302: "Loc'd Out at Work: Black Hair Discrimination"

People who aren’t black are privileged to avoid or doubt it, since – like many forms of racism in 2022 – hair discrimination isn’t usually as obvious as calling someone the n-word. Employers generally aren’t saying things like “I don’t like your dreadlocks so I’m not hiring you.” If it was that overt, maybe it’d be easier to say they’re breaking employment or human rights laws.

Just because something isn’t technically illegal, doesn’t mean it’s legal – and it definitely doesn’t mean it’s ethical.

The fact is, Western business culture is rooted in colonialism and whiteness, which dictates what is acceptable. In corporate North America, employers have long decided what is “appropriate” for the workplace under the sweeping term, “professional”. Most often, it is used in the negative – i.e. “that’s not professional”. And this standard of “professional”, set by executives (i.e. white men) since the 1950’s and earlier, upholds white male power in everything from what shoes you wear (ladies, no open toes!) to your hair style (smooth black hair only!)

Discrimination: It’s Legal. Until it’s Illegal.

I know black hair discrimination is real, because I know anti-black racism is real. And discriminating against a black person because of their hair is racist. But until 2019, it wasn’t recognized as such by the U.S. courts.

In this New York Times article from February 2019, it says that:

“To date, there is no legal precedent in federal court for the protection of hair. Indeed, last spring the United States Supreme Court refused an NAACP Legal Defense and Educational Fund request to review a case in which a black woman, Chastity Jones, had her job offer rescinded in 2010 at an Alabama insurance company after she refused to cut off her dreadlocks.”

How can black hair discrimination be considered legal? The American Bar Association explains in its 2020 article that:

“In a 2017 case…the 11th U.S. Circuit Court of Appeals ruled against the Equal Employment Opportunity Commission when it held that the defendant ‘…banning dreadlocks in the workplace under a race-neutral grooming policy—without more—does not constitute intentional race-based discrimination.’ The court effectively held that refusing to hire someone because of their dreadlocks is legal.” [emphasis mine]

Photo of person carrying a cardboard sign on their back that reads, "Injustice anywhere is a threat to justice everywhere. All black lives matter."
Photo by John Cameron on Unsplash

Before starting my JEDI journey, I’d have been more shocked that educated people could reasonably decide that a person’s hair is not part of their identity, ethnicity, or culture, and therefore it’s OK to create company policies that ban them. After I changed my lens, I now see how whiteness is so ingrained in Western society that people who aren’t black are unconsciously (and consciously) justifying anti-black racism through policy and legal loopholes.

Black hair isn’t the only example of legal manipulation to uphold discrimination. After all, slavery was perfectly legal and even moral, according to certain social, political and religious beliefs. And since slaves were legally defined as property, not humans, they had no individual human rights. The creation of police forces even arose from the protection of slave-owners’ “rights” to their slave property.

The courts’ silence or lack of laws is also used to justify immoral and discriminatory behaviour. For example, women were legally prohibited from voting, not by explicitly banning women, but by defining voters as men (in the U.S., per the 1868 Fourteenth Amendment; in Canada, per the 1885 Electoral Franchise Act.) It wasn’t until 1920 and 1918, respectively, that women were granted federal rights to vote legally – but not all women. Notably, black and Indigenous women were excluded or restricted.

As far as black hair goes, there is good news. Thanks to advocacy groups like The CROWN Coalition, as of today, 14 U.S. states have passed the CROWN Act into law. From their website:

The CROWN Act, which stands for “Creating a Respectful and Open World for Natural Hair,” is a law that prohibits race-based hair discrimination, which is the denial of employment and educational opportunities because of hair texture or protective hairstyles including braids, locs, twists or bantu knots.

Only 36 more states to go…

So what can we take away from all this?

Going back to some of the comments on Janice Gassam Asare’s post:

  • Yes, we should go beyond legalizing black hair to accepting and appreciating black hair (of any style)

  • Yes, it’s crazy and stupid to discriminate against people’s hair – and yes, it does really happen, even in 2022

  • Yes, it happens in Canada too

  • No, there’s no explicit law making black hair illegal in the U.S. or Canada

  • Neither is it illegal in 36 U.S. states to discriminate against people because of their hair

  • Yes, employers DO discriminate against black hair in practice, regardless of policy or law, when they believe braids, locs, twists etc. are “unprofessional”, “unsanitary”, or just plain “unattractive”.

To Regulate or Not to Regulate?

Another big takeaway is to understand the need for and limitations of laws and regulations.

When privilege combines with legal complacency, we can over-rely on laws to prevent wrong behaviour. So the mere fact that laws exists (e.g. employment rights) or don’t exist (e.g. banning black hair) does not guarantee right behaviour.

Neither can right thinking be legalized. Just because your company or country has policies against racism, doesn’t mean it doesn’t happen.

It would be great if everyone voluntarily wore seatbelts and drove at a safe speed. But not everyone does, so we need laws for the people who will only be safe if mandated to.

In a similar way, it would be great if everyone thought natural black hair was beautiful and professional. But not everyone does, so we need laws for the people who will only stop discriminating if mandated to.

The sad truth is, to stop oppression, we have to make the oppression itself illegal.

What will you do differently tomorrow?

On which side of hair privilege do you fall? Does your company believe they’re “not racist” because they have policies or values that say they’re not? Are they adamant that black people are just as welcome as white or other racialized people in the office, while suggesting they change their hair to look more “executive”?

What needs to change in yourself, or your workplace, beyond the legal minimum?

Take action today

A simple action you can take today is to support the CROWN Act by emailing your senator, signing the petition, or just getting involved. Learn more on their website.

White and gold graphic with text that reads: "Did you know? 1 in 2 Black girls can experience hair discrimination #AsEarlyAsFive. Take action now." Crown 2021 Research Study for Girls.
Graphic: Dove Crown 2021 Research Study for Girls


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