Dress Codes: A New Way to Racially Discriminate

By: Nicole Fluke

Sharon Dorram Color at Sally Hershberger, a luxury hair salon on the Upper East Side of New York City, is known for its celebrity clientele and expensive services.[1]  During the summer of 2015, three African American women were hired as receptionists for the famous salon.[2]  Two of the women wore their hair in dreadlocks and one woman wore an afro.[3]  Sharon Dorram, one of the salon’s owners, ordered the general manager, David Speer, to create and enforce a dress code mandating employees wear “black and that bluejeans, ripped clothing and nose rings [are] forbidden, [and] it required shoulder-length hair to be pulled up or back.”[4]  Dorram denied that this dress code was implemented because of the three new receptionists’ races.[5]  Instead, Dorram claimed the new policy was to keep the salon’s employees dressed and groomed in the same “traditional” style found in the many other Upper East Side salons.[6]  However, Speer provided text messages from Dorram ordering the dress code, showing that it was “racially motivated.”[7]  The text message from Dorram to Speer stated, “[t]oday looked awful, Rail yne (sic) had her dreads down; Regine just got hers to match as long and of course Tarren (sic) All 3 at desk and we look like we should be on E. 134th Street. Sorry nor (sic) racist . . .  we are on Mad. And 71st.”[8]  Additionally, Dorram said, “[c]an’t be 3 girls at the desk. 2 like this and 1 w/ big Afro. What is our image Please instruct them not to wear hair down.”[9]

Following the implementation of this dress code, complaints were brought by current and former employees against the salon to the New York City human rights commission alleging racial discrimination.[10]  The first complaint was filed in July of 2016 by Speer, a white man, stating “he felt sickened by being asked to implement an employee hair policy that he said was applied more to black workers than white ones.”[11]  Then in December of 2016, a former receptionist, an African American woman, filed a second complaint, alleging she was the target of racial discrimination while working there.[12] The third complaint was filed in June of 2018 by another receptionist, a hispanic woman, claiming she was told to “steer clients away from stylists who refused to sign a document attesting to the fairness of the salon’s dress code.”[13]

The second case, brought by the African American woman, was brought before the Eleventh Circuit Court of Appeals and alleged racial discrimination when she was denied employment due to her dreadlocks.[14]  The court noted, “precedent holds that Title VII prohibits discrimination based on immutable traits.”[15]  An immutable trait is defined as one that is “not capable of or susceptible to change.”[16]  The plaintiff argued that dreadlocks are an immutable characteristic of her race.[17] After the case was dismissed by the district court, the Equal Employment Opportunity Commission appealed to the Court of Appeals, who affirmed in part.[18]  The Court of Appeals stated that although dreadlocks are “culturally associated with race,” the plaintiff failed to assert that they are “an immutable characteristic of black persons.”[19]

It may be difficult proving racial discrimination based on dress code requirements under Title VII.[20]  But, New York City is seeking greater protection for citizens by targeting “the unfair treatment of black people . . . [and] the right of New Yorkers to maintain their ‘natural hair, treated or untreated hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.”[21]  Local law realizes Title VII’s purpose, which broadly prohibits discrimination,[22] by acknowledging that dress codes, like Sharon Dorram Color at Sally Hershberger’s, are new forms of racial discrimination.[23]

[1] Stacey Stowe, Upper East Side Salon Under Investigation for Racial Discrimination, N.Y. Times (Feb. 23, 2019), https://www.nytimes.com/2019/02/23/style/sharon-dorram-color-sally-hershberger-hair-discrimination.html.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] EEOC v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1020 (11th Cir. 2016).

[15] Id.

[16] Immutable, Merriam-Webster Dictionary (New ed. 2016).

[17] EEOC v. Catastrophe Mgmt. Sols., 852 F.3d at 1020.

[18] Id.

[19] Id.

[20] See id.

[21] Stowe, supra note 1.

[22] McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973).

[23] Stacy Stowe, New York City to Ban Discrimination Based on Hair, N.Y. Times (Feb. 18, 2019), https://www.nytimes.com/2019/02/18/style/hair-discrimination-new-york-city.html.

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