For New York City Employers, It's All About the Natural

HIGHLIGHTS:

• New York City (NYC) employers must provide nursing mothers with a lactation room with accommodations, including an electrical outlet, nearby access to running water, a chair and a surface to place a breast pump.
• All NYC employers should review any existing policy regarding grooming to ensure that it is not in conflict with NYC's recent guidance under NYC's Human Rights Law.

New York City (NYC) employers must provide nursing mothers with a lactation room that includes several accommodations.

In addition, as required by the NYC Human Rights Law (NYCHRL), employers' grooming policies should be gender neutral and comply with the City's recent guidance relating to race discrimination on the basis of hair.

New Lactation Room Requirements Effective March 18, 2019

Requirements for Lactation Room

Pursuant to the NYC law, a lactation room is defined as: a sanitary place, other than a restroom, that can be used to express breast milk shielded from view and free from intrusion and that includes at minimum an electrical outlet, a chair, a surface on which to place a breast pump and other personal items, and nearby access to running water.

Although the room may be used for other functions, the lactation room must be located "in reasonable proximity" to the work area of the employee needing to express breast milk, and there must be a refrigerator near the work area of that employee.

If the lactation room is likely to impose an undue hardship, the employer is required to engage in constructive and cooperative dialogue with the nursing employee. The dialogue must be in good faith. That said, any denial of the accommodation must be in writing, explaining the difficulties encountered by the NYC law as well as other reasonable options for the employee.

Requirements for Lactation Room Written Policy

In addition to lactation room accommodations, NYC employers are required to implement a corresponding written policy that must be distributed to all employees upon hiring. It must state the following:

1. Employees have the right to request a lactation room
2. The process that employees may adhere to when requesting a lactation room
3. The employer will provide nursing employees with reasonable time to express breast milk
4. A procedure for employees to follow when more than one employee needs to use the lactation room at the same time
5. The employer will engage in cooperative dialogue if providing a lactation room would place an undue hardship on the employer

Natural Hairdos Prompt New "Hair Don'ts" for NYC Employers

Employers should note that, pursuant to the NYCHRL, grooming policies must be gender neutral. Accordingly, employers' grooming policies should avoid the following:

• prohibitions on locs, dreadlocks, cornrows, twists, braids, Bantu knots, fades, Afros
• mandates requiring employees to wear their hair straight or relax their hair, or to alter the state of their hair to conform to the employer's preferences
• requirements that hair be maintained at a specific length

The NYC Commission on Human Rights in February 2019 issued guidance relating to race discrimination on the basis of hair. Employers can no longer ask employees of color to straighten their hair chemically or otherwise, limit it in size or length, or perform other measures to alter it from its natural state.

Although the mandate of the NYCHRL prohibits discrimination on the basis of race, religion, disability, age or gender, the text of the law focuses on preventing anti-black racism and biases, including conscious and unconscious biases or prejudice against "characteristics and cultural practices associated with being Black." Notably, the NYCHRL outlaws prohibitions on natural hair or hairstyles most closely associated with black people. The NYCHRL gives employees of color the freedom "to maintain natural hair, treated or untreated hairstyles," including the right to "keep hair in an uncut or untrimmed state."

NYC employers should be particularly careful not to enforce disparate impact policies, i.e., facially neutral policies aimed at all employees that would still have the impact of discrimination against black and other employees with natural hair styles.

A simple example is a policy stating that all hairstyles of customer-facing employees must be "professional and normally accepted in an office environment," and then telling men with cornrows that they cannot be employed as doormen, hosts, customer service or other customer-facing positions while displaying those cornrows. NYC employers in the food or health services industries who face any health or safety laws, or other regulations or concerns regarding hair, should seek to find alternate means of addressing those concerns to avoid running afoul of the NYCHRL and other laws prohibiting racial discrimination. For example, a restaurant may require all kitchen employees with long hair to tie their hair up and wear a head covering or netting.

Attorneys in Holland & Knight's Labor, Employment and Benefits Group stand ready to offer further assistance on these matters. For more information or questions specific to your organization, contact the authors.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.