Hair is a marker for various ethnic, religious, cultural, gender and racial indications. Hair has been used to denote religion, status, wealth, marital status and age. Hair and identity are inseparable. Nowadays, it is common for workplaces to have dress code, appearance and grooming policies. Most of these policies target black people. These policies tend to be fundamentally sexist and racist and in some cases may violate several cultural and religious rights and the right to freedom of expression thereby leading to hair-based discrimination.
In 2017, the US army lifted its ban on black hairstyles and removed the terms ‘matted and unkempt’ from its grooming policy. This is in line with the recognition that longstanding appearance norms which target predominantly black hairstyles are harmful and discriminatory in nature and place an undue burden on black people who choose to maintain certain hairstyles. In July 2020, Virginia (USA) signed the CROWN Act into effect. This Act bans discrimination against hair styles and textures associated with race (dreadlocks, bantu knots, braids, twists, afros, head-wraps etc.) CROWN is an acronym for Creating a Respectable and Open World for Natural Hair. The aim of the CROWN Act is to prevent traditional hair-based discrimination in the workplace and in public schools. Maryland, California, New York, New Jersey, Washington DC and Colorado have signed the same law into effect.
In 2016, the US Supreme Court decided on the hair discrimination case of Charity Jones. Jones, an African-American woman with dreadlocks was offered a job by Catastrophic Management Solutions on condition that she changes her hairstyle to comply with the company policy. The company’s ‘race-neutral’ grooming policy required its employees to be dressed and groomed in a manner projecting a professional and business like image. The policy prevented ‘excessive’ hairstyles or hair ‘unusual in colour.’ The EEOC argued on behalf of Jones that this condition violated the prohibition against racial discrimination. The Court incorrectly concluded that hairstyles are not synonymous with race and that rules banning dreadlocks during the hiring process were legal. The court argued that dreadlocks were mutable. Immutable traits are traits which have been historically used as a basis for discrimination that an individual has no ability change.
This was a miscarriage of justice and a failure to take into account the existence of multi-racial societies and hairstyles associated with those races. The racialisation of black people’s hair and the stereotyping which follows dates back to slavery and colonisation where kinky hair was considered as filthy, messy, disruptive and deplorable when pitted against the long and straight European hair that was considered as neat, clean, presentable, beautiful and attractive. Black people’s hair is an immutable trait and black people’s hair has been used as a basis for discrimination in the past. In the 1700s, the Tignon Laws required black women to wear tignons to cover their hair as an indication that they were salves although some of them were free.
The 2016 Supreme Court judgement unjustifiably failed to prevent hair discrimination by departing from established precedents and erroneously cemented the incorrect social default standing that Eurocentric and Westerncentric standards are what’s considered to be normal. Previous precedents on hair discrimination should be used as points of reference. In Jenkins v Blue Cross Mutual Hospital Insurance, Jenkins was denied a promotion on account of her afro. The court held that according to Title VII of the Civil Rights Act, this was hair racial discrimination. In Price Waterhouse v Hopkins, the court held that discrimination based on stereotypes, regardless of whether such stereotypes focus on mutable or immutable traits is unfair discrimination and is prohibited. The court also held that gender stereotyping is actionable as sex discrimination. Therefore, it is sexist to prescribe that men must have neat short hair when women are permitted to have long hair.
The constitutional right to equality encompasses the right to be free from all forms of discrimination. The state or any person may not directly or indirectly discriminate against anyone on one or more grounds including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. The Employment Equity Act adds HIV status, sexual orientation, family responsibility and political opinion to this list of prohibited grounds. Discrimination based on one of the listed grounds is automatically unfair discrimination and the onus is on the respondent to prove that the discrimination was fair. The law also prohibits unfair discrimination which perpetuates systemic disadvantage, undermines human dignity, or adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner as comparable to the prohibited grounds. The right to equality recognises that the unjust consequences of prolonged unfair discrimination must be rectified.
Discrimination means an act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly imposes burdens, obligations or disadvantages OR withholds benefits, opportunities or advantages from any other person on one or more prohibited grounds. Whilst hairstyles are irrelevant to one’s professionalism, hygiene, job performance or academic performance; they constitutes a barrier to job acquisition, maintenance of employment as well as employment equality, inclusion and dignity in the contemporary workplace, schools and the community. A 2019 study by Dove showed that 80% of black women are likely to change their natural hair to meet societal norms or expectations at work and at school. The decision to wear one’s hair in a particular style is a personal and private decision. Any interference with that decision is a violation of the right to privacy. How one chooses to wear their hair should not be a source of discrimination and disadvantage. People should not be dismissed, sidelined for promotions, harassed, sidelined for job opportunities or expelled from school due to their hairstyles.
School policies may not infringe on the students’ right to freedom of expression, education, dignity and equality unless it is reasonably believed and can be proven that such freedom of expression will substantially interfere with the work of the school or impinge on the rights of other students. There is no sound pedagogical rationale to justify the infringement of students’ freedom of expression to wear their hair in natural, protective or predominantly black hairstyles on the ground that such freedom interferes with the work of the school or impinges on the rights of other students. In the Pillay case, the court held that the fact that granting Sunali Pillay an exemption to wear her Hindu nose stud might encourage more learners to express their religion or culture was a cause for celebration and not a fact to be feared. The court further stated that schools should reasonably accommodate religious and cultural practices in their codes of conduct. From this case, it is clear that our courts understand that representation is important and can influence others to embrace their culture, ethnicity and religion.
We live in a diverse and multi-cultural society comprised of different races, cultures, religions, sexual orientations. It is impossible to have a single uniform standard of professional hair or decent hair colour. A race-neutral hair policy is not feasible. Whatever standard of hair colour or hair neatness employees or schools adopt will inadvertently discriminate against one racial, ethnic, religious or gender group.
The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) is aimed at preventing and prohibiting unfair discrimination and harassment. The Act also provides for measures to determine if certain conducts amounts to unfair discrimination, the justification of such conduct and the remedies thereof. The test for unfair discrimination is as follows (at the end of this outline, you should be satisfied that hair discrimination amounts to unfair discrimination on the grounds of gender, religion, race, culture, belief, age and ethnicity):
- Is there discrimination in terms of section 1 of PEPUDA? (The court looks at whether or not the respondent’s conduct has caused any harm or disadvantage to the complainant and whether or not the discrimination was on a prohibited ground)
- Is the discrimination unfair in terms of section 14 of PEPUDA? (The court looks at the context of the discrimination, the impact of the discrimination and whether the discrimination is justifiable. Discrimination on one of the prohibited grounds amounts to automatically unfair discrimination)
To assess the impact of the discrimination, the court asks the following questions: does the discrimination impair human dignity; how does the discrimination impact the complainant; does the complainant suffer from past patterns of discrimination or belong to a previously disadvantaged group; what is the nature and extent of the discrimination and is the discrimination systemic. To decide whether or not the discrimination is justified, the court asks the following questions: does the discrimination have a legitimate purpose; to what extent does the discrimination achieve this purpose; are there less restrictive measures to achieve this purpose; what steps did the respondent take to address the arising disadvantage or to accommodate diversity.
The Constitution mandates the national legislature to enact legislation to prevent and prohibit unfair discrimination. PEPUDA, the EEA, the Constitution, the LRA and the Schools Act are not ‘hair specific’ enough. The legislature should look into enacting a Hair Act (inspired by the CROWN Act) to prohibit hair discrimination. That act should provide that:
- grooming and appearance policies and uniform regulations in schools are prohibited from targeting hair characteristics and hairstyles typically associated with black people.
- no students may be expelled, suspended, harassed, subjected to adverse treatment or face disciplinary action for wearing their hair in a style predominantly associated with black people or according to their religious or cultural rites.
- grooming policies which prohibit predominantly black hairstyles such as afros, braids, twists, dreadlocks, cornrows, bantu knots and fades are prohibited.
- grooming policies which amount to gender stereotyping are prohibited (e.g. expecting women to keep long and traditionally feminine hairstyles and prohibiting men from keeping long hair) and are actionable as sex discrimination.
- grooming policies which hinder cultural and religious freedom are prohibited; such as wearing untrimmed beards, head-wraps, wearing of hijabs and dreadlocks.
- harassment of employees of imposing unfair conditions on account of their hair appearance is prohibited (e.g. preventing people with certain hairstyles from meeting clients, forcing men to cut their hair or telling employees that their hair is unprofessional).
- employers and schools may not ban/limit/restrict hairstyles associated with black people to promote a certain desired image or under the pretence of unfounded health and safety concerns.
Sources: Department of Correctional Services v POPCRU 2013 7 BCLR 639 (SCA); Department of Correctional Services v POPCRU 2012 2 BLLR 110 (LAC); POPCRU v Department of Correctional Services 2010 10 BLLR 1067 (LC); Labour Relations Act; Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000; Civil Rights Act 1964; Employment Equity Act 55 of 1998; EEOC v Catastrophic Management Solutions 852 F.3d 1018 (11th cir. 2016); Jenkins v Blue Cross Mutual Hospital Insurance 538 F.2d 164 (1976); Brink v Kitshoff 1996 (4) SA 197; Price Waterhouse v Hokins 490 U.S 228 (1989); Dawood, Shalabi and Thomas cases 2000 (3) SA 936; MEC for Education: KwaZulu-Natal v Pillay 2008 (1) SA 474 (CC); Radebe v Principal of Leseding Technical School (1821/2013) [2013] ZAFSHC 111 (30 May 2013)
MUSINGS OF CHIEF JUSTICE CHIVENGE 
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