ABOUT HCR

Founded in 2015, Howard Human & Civil Rights Law Review (HCR) is a student-managed, faculty-supervised law review published by the Howard University School of Law.  HCR focuses on issues related to human rights, civil rights, and international law.

See More on the Howard University School of Law Website here

HCR

HOWARD HUMAN & CIVIL RIGHTS LAW REVIEW © 2016 

Regulations on Black Women’s Natural Hair: The Assault on Human Rights

November 30, 2016

 

INTRODUCTION

 

“Your hair feels like pubic hair--that was one of the first insults that someone hurled at my hair, she was a junior at my school.”[1]

 

      Hlonipha Mokoena, a Black woman, depicts just how difficult it can be to wear her natural hair.[2] In an article about black hair, she described an encounter that she had while at school with another student: “Your hair feels like pubic hair.[3] That was one of the first insults that someone hurled at my hair.[4] She was a junior at my school.[5] She would touch my hair and repeat this sentence to all present.”[6]

       Historically, black hair has always represented more than its texture. The texture of African American hair is often labeled as “good hair” or “bad hair.”[7] The origins of these labels are a result of deep-rooted survival mechanism the Black women needed to maintain one’s being in society.[8] Ayana Byrd and Lori Tharps explain this in the article ‘Hair Story: Untangling The Roots Of Black Hair in America.’

 

Curiously, the hair was considered the most telling feature of Negro status, more than the color of the skin. Even though some slaves . . . had skin as light as many Whites, the rule of thumb was that if the hair showed just a little bit of kinkiness, a person would be unable to pass as White. Essentially, the hair acted as the true test of blackness, which is why some slaves opted to shave their heads to try to get rid of the genetic evidence of their ancestry when attempting to escape to freedom.[9]

 

      The freedom to wear your hair in its natural state is a human right. Period. However, depending on your race, this human right may be violated. Compared to races like Caucasians and Asians, Black women have different hair texture, length, thickness, and porosity. The natural hair of Black woman ranges from very curly (4c) to straight (1) texture.[10] Natural hair can be chemically altered to become straight through the use of heat (flat iron, hot comb) or chemical products such as relaxers or perms.[11] The predominately favored hair texture for women in society is straight hair. This has been demonstrated in places such as work and in schools – two places that are fundamental to one’s ability to live, grow, and prosper in society.

      When what comes from women naturally is problematic in the spaces that allow her to sustain herself—ties to hair—this is a violation of her human rights. Furthermore, it is an assault on the humanity of a population. Because when someone says, “girl, you need a perm” (i.e., chemically alter the natural state of your hair to a straight texture), what they are really saying is, “what you ‘need’ are things to help you to survive.” In the world we live in today, Black women are not allowed to freely be themselves and wear their hair the way it naturally is.

       This article will examine the denial of Black women’s right to wear their natural hair. Part I will address how Black women have been denied employment because of natural hair policies. Part II will examine the denial of Black girls from wearing their natural hair at school. Part III will assert that wearing one’s natural hair is a human right and furthermore address the illegal denial of one’s civil rights when the government discriminates on these bases.

 

I.  BLACK NATURAL HAIR IS  “UNPROFESSIONAL

 

        Black women’s hair has been policed throughout history and into the present--particularly in places of work. Places that have denied employment to Black women with natural hairstyles like dreadlocks (because they are “unprofessional”) typically consider it an extreme hairstyle comparable to unnatural hair coloring or exotic styles like mohawks. However, it is clear that they lack the understanding of the meaning behind what wearing one’s hair natural means and, at the very least, that these hairstyles are not “statements” but simply the way Black women’s hair grows out of their head. A natural hairstyle is defined as non-synthetic hair that is grown from one’s scalp and is not chemically or thermally straightened.[12] 

       Title VII makes it unlawful to discriminate against someone on the basis of race, color, national origin, sex or religion.[13] The purpose of this comprehensive legislation is to create equal opportunities, conditions, privileges, and compensation in employment for the traditional victims of job discrimination-blacks, other racial minorities, and women.[14] Title VII is silent as to the definition of "discrimination,” as a result; the courts have been left with the problem of interpreting the statute without the aid of any clear legislative guidelines.[15]  Cases involving employer-mandated hair and grooming standards do not illustrate as well as other cases the presence of deeply ingrained myths, negative images, and stereotypes that operate to define the social and economic position of blacks and women.[16]  

       Rogers v. American Airlines is the seminal case concerning employer grooming codes as they relate to Black women hair.  Rogers, a Black woman, worked for American Airlines, Inc. (American), as an airport-operations agent.[17] American had a policy prohibiting employees in Rogers’s position from wearing an all-braided hairstyle.[18]  Rogers, who wore an all-braided hairstyle, was required to wear a headpiece over her braids while at work.[19] Rogers sued American, claiming that American’s policy discriminated against her on the basis of sex and race in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq, and 42 U.S.C. § 1981.[20] American moved to dismiss the complaint.[21] The court ruled in favor of American, holding that a neutrally applicable policy prohibiting all employees from wearing all-braided hairstyles, regardless of sex or race, does not constitute illegal discrimination in violation of Title VII of the Civil Rights Act of 1964 or 42 U.S.C. § 1981.[22]

       Similarly, in September 2016, the 11th Circuit Court of Appeals in a 3-0 decision ruled that it is ok for employers to discriminate against traditionally black hairstyles, like locs.[23] The plaintiff, a Black woman, was denied employment because she had a natural hair style (dreadlocks).[24] The court reasoned that discrimination had to be based on characteristics that didn’t change, and hairstyles didn’t qualify as “immutable.”[25]

       Both of these cases illustrate the inadequacy in an anti-discrimination law that is meant to protect civil rights. Ultimately, the reasoning the court employed excludes certain hairstyle regulations as a form of discrimination because: 1) hair can change; and 2) the policy applies to all employees and so it is neutral.[26] However, this standard is too narrow because many characteristics are “changeable”--including facial features such as skin color. A mutable characteristic does not bar discrimination. Moreover, even though the policy may be neutral on its face, when applied, it is discriminatory.

In extreme cases, some employers blatantly discriminate against Black women hair. One example is the US Army and their hair grooming policies.[27] In 2014, the Army issued appearance standards which excluded woman from wearing natural hair styles such as large braids, locks, and twist.[28] Styles--predominately worn by Black women. However, the standard allows women to wear unnatural hairstyles like wigs and extensions.[29]

 

II.  HAIR-ESTEEM: THE EMOTIONAL CONSEQUENCES OF HAIR DISCRIMINATION

 

       The false perception that Black women’s natural hairstyles are not “professional” is very problematic to their self-esteem, well-being, and livelihood.  A research study conducted to understand the relationship between hair-esteem and self-esteem among Black women who wear their hair in a natural hairstyle was done on 529 respondents.[30] The respondents were asked how common they believed discrimination against Black women were when wearing their hair in its natural state. Of those who responded, Black natural hair discrimination was somewhat or very common (85%).[31] About one third of the respondents reported having experienced discrimination as a result of wearing their hair in its natural state.[32] 

       Critics may ask, “where should the line be drawn then?” But it would be the same if employers adopted a policy stating: employees are not allowed to wear straight blonde hair. The policy would be “neutral”--as it applies to all employees, however, most Black women would not be affected because their hair grows curly and in varying shades of brown. In this scenario, a particular group of people (those who have natural blonde straight hair) would be forced to find ways to alter their hair to “fit” the employer’s specific standard, which exclude a group of people with certain characteristics. Black women are unfairly faced with this burden and this kind of discrimination far too often because Black hair does not fit into the narrow Eurocentric beauty standards.[33]

 

III.  YOUR AFRO IS TOO BIG-YOU CANNOT WEAR IT TO SCHOOL[34]

 

       In September 2016, stories emerged on social media about a group of students in Pretoria, South Africa who were protesting their school’s hair policy. Staff members at Pretoria High School for Girls had taken to telling black students to “fix” their hair, according to some of the students.[35] Some students were told to use chemical straighteners, while others got a reminder about the school rule limiting cornrows dreadlocks and braids to a centimeter or less in diameter.[36] The schools code included a long list of rules governing students’ general appearance.[37] Its hairstyle guidelines had stipulated that all hair must be brushed, tied back in a neat ponytail if long enough, and that “cornrows, natural dreadlocks, and singles/braids . . . are allowed, provided they are a maximum of 10mm in diameter.” [38] 

        These kinds of hair regulations deny Black women their right to be themselves and express themselves. Schools have implemented similar rules inhibiting Black girls from expressing their culture. For example, In September 2016, students at Gibbs high school in St. Petersburg, Florida were banned from wearing traditional African style head wraps.[39] The issue sparked a debate about school dress codes and cultural identity.[40] The girls fought the policy and other rules they deemed culturally insensitive by holding what they called “Black Girls Wrap Wednesdays.”[41]

        Though neither of the stories above made it to court, Black girls were forced to advocate for themselves, come together, resist and protest to protect their human and civil rights. The First Amendment guarantees the fundamental freedoms of religion, expression, assembly, and the right to petition, the government may nevertheless limit speech under certain circumstances.[42]  The U.S. Supreme Court has recognized that students possess First Amendment rights to express themselves in a variety of ways.[43]  They can write articles for the school newspaper, join clubs, distribute literature and petition school officials.[44] In order for the State  or school officials [CA2] to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.[45] Staffs were clearly discomforted and unpleasant with Black young girls demonstrating their cultural pride. As these stories illustrated, the students posed no kind of inappropriate or distracting manner. The Black girls were simply attempting to freely be themselves. The freedom to wear your hair and express your culture is a human right—in any setting.

       The major argument on the issue of Black women having the freedom to wear their natural hair in certain settings (like work and school) has been that these cultural characteristics should be considered in the law (e.g., Title VII). Advocates argue that cultural expression should be protected. Hair is more than a cultural expression. Cultural expressions are those expressions that result from the creativity of individuals, groups and societies, and that have cultural content.[46] People create culture and cultures inform people. Even pressing, straightening, and chemically altering one’s hair could be a “cultural thing.”

 

IV.  WEARING YOUR NATURAL HAIR IS HUMAN RIGHT

 

        The Universal Declaration of Human Rights sets out fundamental human rights to be universally protected.[47] Article III states that everyone has the right to life, liberty and security of person.[48] As discussed, this right has been unprotected both nationally and internationally. Denying Black women from wearing natural hairstyles such as afros, locs, and braids is a violation of Black women’s right to life, liberty and security because this in turn effects their ability to work, receive education and feel comfortable to be themselves. Ultimately, it is denying Black women the ability to function as human beings in society because human beings have rights.

[1] Hlonipha Mokoena, From slavery to colonialism and school rules: A history of myths about black hair (Aug. 31 2016, 12:59 PM), https://www.rawstory.com/2016/08/from-slavery-to-colonialism-and-school-rules-a-history-of-myths-about-black-hair/.

 

[2] Id.

 

[3] Id.

 

[4] Id.

 

[5] Id.

 

[6] Id.

 

[7] AYANA BYRD & LORI THARPS, HAIR STORY: UNTANGLING THE ROOTS OF BLACK HAIR IN AMERICA17-18 (2014).

 

[8] Id.

 

[9] Id.

 

[10] Know Your Hair Type, http://blacknaps.org/know-your-hair-type/ (Last Visited Dec.16, 2016).

 

[11] Kendra Turnquest, Natural vs Relaxed Hair, http://blackhairmedia.com/natural-hair/natural-vs-relaxed-hair/ (Last Visited, Dec. 16, 2016).

 

[12] Teiahsha Bankhead & Tabora Johnson, Self-Esteem, Hair-Esteem and Back Women With Natural Hair, 1 INTL J. of EDUC. & SOC. SCI. (2014) (Discussing the difference between natural hair and chemically altered hair).

 

[13] U.S. EQUAL EMP.[MENT] OPPORTUNITY COMMN, PROHIBITED EMPLOYMENT POLICIES/PRACTICES, https://www.eeoc.gov/laws/practices/ (Last Visited Dec.16, 2016).

 

[14] Susan Hillary Loeb, Desperate Dress Codes as Sex Discrimination in Violation of Tittle VII, 56 CHI-KENT L. REV 1249 (1980).

 

[15]  Id.

 

[16] Paulette M. Caldwell, Hair Piece: Perspectives on The Intersection of Race and Gender, 365 DUKE L. REV. 368 (1991).

 

[17] Rogers v. Am. Airlines, 527 F. Supp. 229, (S.D.N.Y. 1981).

 

[18] Id. at 232–33.

 

[19] Id.

 

[20] Id.

 

[21] Id.

 

[22] Id.

 

[23] Taryn Finley, Appeals Court Rules Employers Can Ban Dreadlocks At Work, Huffington post (Sept. 20, 2016, 6:19 pm), http://www.huffingtonpost.com/entry/appeals-court-rules-dreadlocks-work_us_57e0252ae4b0071a6e08a7c3.

 

[24] Id.

 

[25] Id.

 

[26] Rogers v. Am. Airlines, 527 F. Supp. 229, (S.D.N.Y. 1981); Finley, supra note 26.

 

[27]  (In early April of 2014, the Army issued new appearance standards, which included bans on most twists, dreadlocks and large cornrows - all styles used predominantly by African-American women with natural hairstyles.)

 

[28] Uniform and Insignia- wear and appearance of Army Uniform Insignia, AR 670-1 (2015).

 

[29]  Id.

 

[30] Teiahsha Bankhead & Tabora Johnson, Self-Esteem, Hair-Esteem and Back Women With Natural Hair, 1 Int’l J. of Educ. & Soc. Sci. (2014).

 

[31] Id. at 7.

 

[32] Id.

 

[33] Angela Onwuachi-Willig, Another Hair Piece: Exploring New Strands of Analysis Under VII, 98 GEO. L.J. 1080, 1105 (2010) (discussing how black women are discriminated against at the intersection of race and sex through employers’ bans on natural black hairstyles such as braids, locks, and twists.).

 

[34] Maggie Mallon, Black South African at Pretoria High School for Girls Are Protesting for Their Right to Wear Natural Hair, Glamour, Aug. 30, 2016, http://www.glamour.com/story/pretoria-high-school-for-girls-natural-hair-protest.

 

[35] Krista Mahr, Protest over black girls’ hair rekindle debate about racism in South Africa, WASH. POST (Sept. 3, 2016), https://www.washingtonpost.com/world/africa/protests-over-black-girls-hair-rekindle-debate-about-racism-in-south-africa/2016/09/02/27f445da-6ef4-11e6-993f-73c693a89820_story.html?utm_term=.78de71973342.

 

[36] Id.

 

[37] Id.

 

[38] Id.

 

[39] Florida high schoolers fight for right to wear African head wraps, THE OBSERVERS, *Sept. 15, 2016), http://observers.france24.com/en/20160915-black-girl-hair-usa-head-wrap.  (Pinellas County School District has a strict policy of no head wraps  asked--which was tied in a traditional African style.).

 

[40] Id.

 

[41] Id.

 

[42] U.S. CONST. amend. I.

 

[43] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 504 (1969).

 

[44] Id.

 

[45] Id.

 

[46] See UNESCO, Cultural Expressions, http://www.unesco.org/new/en/culture/themes/cultural-diversity/cultural-expressions/the-convention/glossary/).

 

[47] UNITED NATIONS, UNIVERSAL DECLARATION OF HUMAN RIGHTS, G.A. Res. 217A (III), U.N. Doc. A/810 at XX (1948).

 

[48] Id.

 

Please reload