Hairy Discrimination

Hair can be evidence of employment discrimination. Seriously. Here are two brief examples.

Take IBM. They have a long track record of laying off older workers.

How do they get away with what appears to be age discrimination? The answer is that the Age Discrimination in Employment Act (ADEA)—which prohibits any adverse employment decision based on age for employees 40 years and older— has a large exception for “reasonable factors other than age.” A corporate reorganization based on cost is a reasonable factor other than age. It also clears out older workers who tend to have higher pay, and advances a younger generation of managers who are cheaper to employ.

Enter hair. An IBM document referred to such a strategy. Older executives were praised for their  experience but described Baby Boomers as “gray hairs” and “old heads.” The memo added, “successor generations … are generally much more innovative and receptive to technology than baby boomers.” [Note aside: The people in my life who are bailing out of Facebook and ditching social media are millennials, while my over-40 friends are holding fast, saying that the way to adapt to Facebook is to limit or change interactions, not delete your account. So much for ageist assumptions about technology.]

This document was cited in an age discrimination lawsuit that the company eventually settled. I was an expert witness in an age discrimination lawsuit a few years ago. Company documents revealed the same type of ageist assumptions. The $2.1 million lawsuit settled for $933,000 on the strength of this evidence.

Here is the other hairy problem: Dreadlocks.

This week, the NAACP asked the U.S. Supreme Court to consider whether denying a black woman a job because she had dreadlocks is a form of unlawful race bias. We read this case from a lower court in one of my classes. Chastity Jones [photo above] was offered a job at a call center only to have it rescinded when she refused to cut her hair in order to comply with the company's grooming policy. It's not clear what hair has to do with answering client phone calls, and Ms. Jones seems to project a business-like appearance above.

The 11th U.S. Circuit Court of Appeals in 2016 dismissed Jones' case, which was brought by the Equal Employment Opportunity Commission, saying it was bound by existing precedent that held Title VII of the Civil Rights Act of 1964 does not prohibit discrimination based on traits that can be changed. Although dreadlocks are culturally associated with race, the circuit said, the EEOC did not claim they are an “immutable characteristic” of black people.

My thought? Rarely does anything good come out of discussing, assuming, or making an employment decision based on someone’s hair. And for good reason: Hair is rarely related to performance. But comments about hair frequently reveal bias. (Thanks to a FB friend for the tip.)