Contributed by Annaëlle Barreau
Introduction
Anti-Black hair sentiment in North America is a centuries-old issue. A survey conducted by DOVE and the CROWN coalition found that 86% of children have experienced race-based hair discrimination by the age of 12. The discourse regarding Black hair is politicized and goes beyond a mere discussion of beauty standards since Black people are denied educational and employment opportunities simply because of their hair. There are societal pressures in multiple spheres for Black women and girls to either cut or chemically alter their hair to fit in. Discrimination against one’s natural hair texture is a civil right and public health issue that ought to be addressed through legislation.
Some lawmakers have affirmed that while hair texture is an immutable characteristic, hairstyles, such as twists, are not and should thus not be granted protection. This argument holds only where one refuses to properly educate themselves on Afro hair care. The discrimination against protective hairstyles in educational facilities and the workplace forces many Black women and girls to alter their hair in damaging ways to meet European aesthetic standards or overmanipulate their hair.
Studies unveil disparities in the impact of hairstyling choices between Black individuals and their white counterparts. For instance, for the sake of infection control, white nurses are asked to tie their hair up, whereas Black nurses are often asked to cut theirs.
In Canada, there is stigma and misconceptions surrounding afro-texture hair. Beauty schools do not include afro-texture hair in their curriculum, and there is a lack of positive representation in the mainstream media. Although there has been an outpouring of public response, with a petition gathering 30,000 signatures to give afro hair a place in beauty-school programs, no official change has been implemented.
The jurisprudence and mediatization of race-based hair discrimination in Canada have not developed as much as they have in the United States; however, the issue is just as present. This blog article will discuss the history of race-based hair discrimination in America, the new American legislation aiming to combat the problem, and how this discrimination has been addressed in Canada.
Update
Since the original publication of this blog post, a National Institutes of Health study finds that hair straightening chemicals are associated with higher uterine cancer risk and Black women are at a higher risk due to higher use.
History of race-based hair discrimination
In the 1700s, in Colonial Louisiana, there was an established community of free Black people. Black women were known to style their hair elaborately, which drew the attention of white men. This attraction instilled jealousy and fear that the Black community would gain too much power. Further, white women claimed that Black women were intentionally scheming to tempt their white husbands. As a result, when the Spanish took over Louisiana, they implemented the Tignon Laws, by which Black women were forced to conceal their hair with a tignon (a head scarf typically worn by enslaved women while labouring). The law’s purpose was twofold: it was an additional visual social marker, reasserting that free Black women were closer to enslaved women than to white women and supposedly prevented them from enticing white men. Black and Creole women, however, seized this opportunity to create a new cultural element by crafting colourful and ornate headwraps. By the early 1800s, while the Tignon Laws were no longer being enforced, race-based hair discrimination still persisted.
Madame CJ Walker, whose empire was launched by inventing the hair-straightening comb and other hair products, became the first Black female millionaire towards the end of the 19th century. Straight hair was seen as leading to social and economic advancement. Minstrel shows would mock kinky hair texture, referring to it as nappy and comparing it to wool.
Afro-textured hair is often seen as deviant compared to the narrow Eurocentric beauty standard. There is a strong pressure for Black women and girls to cover, strengthen, or chemically alter (“relax”) their afro-textured hair in order to be accepted in society. However, many of these practices come at a high monetary and physical cost. Through hair relaxers, racism and toxins collide; several dangerous chemicals are found in many hair relaxer products, which can lead to chemical burns. “Hair products sometimes used by Black women may contain endocrine-disrupting chemicals linked with serious health issues, according to Harvard T.H. Chan School of Public Health’s Tamarra James-Todd. […] Straight long hair has often been held up as the standard of beauty […] To try to adhere to that standard of beauty [… ] some Black women use a there is a limited selection of chemical-free products for Black hair on the market, and where they do exist they are often not widely available and can be expensive.”
Today, there is a dichotomous status accorded to Black hairstyles in mainstream society, where they are considered fashionable on one hand, being emulated by non-Black people, while being considered unprofessional on the other. This results in many Black people, especially women and girls, being denied access to education and employment opportunities because of their natural hair. In fact, Black girls and women are routinely sent home or denied employment due to their hair being perceived as “unprofessional.”
Natural Black hair in the workplace is a civil rights and public health issue that is now being fought with legislation.
The Crown Act
On 3rd July 2019, Governor Gavin Newsom signed the Senate Bill 188, also known as the CROWN Act (Create a Respectful and Open Workplace for Natural Hair), making California the first state to protect Black students and employees from hair discrimination through explicit legislation. Nine days later, New York became the second state to criminalize race-based hair discrimination after Governor Andrew Cuomo signed a bill amending the state’s Human Rights Law in July 2019. The CROWN Act, which seeks to end race-based discrimination against natural hairstyles at work and school, is currently law in fifteen American states. The Act expanded the definition of race in the State Education Code and the Fair Employment and Housing Act. Various states include slightly varying styles beyond mere texture within their parameters of protection (some including twists, locks, and hair wraps).
In March 2022, the U.S. House of Representatives passed Bill H.R.2116, which “prohibits discrimination based on a person’s hair texture or hairstyle if that style or texture is commonly associated with a particular race or national origin.” The legislation is awaiting approval by the Senate. Under this bill, hair texture and protective hairstyles would be granted federal protection from discrimination.
The Situation in Canada
In 2016, Akua Agyemfra, a server at a Toronto Jack Astor restaurant, wore her natural hair in a bun and was sent home by the manager who required that female staff wear their hair down, despite Agyemfra showing that her natural hair does not fall straight. In the same year, Cree Ballah, a biracial employee, was asked by fast-fashion brand Zara to remove her box braids and told they did not fit the brand’s “clean professional look”. In 2019, Edmonton AGO Bistro worker, Natasha Doyle-Merrick, quit her job after being told her hair could ‘scare’ customers. Employees should not have to chose between quitting and wearing their natural hair to work. However, environments that scrutinize Afro hair in such a manner are also often the host of other toxic and discriminatory behaviours.
In 2014, Lettia McNickle was working as a hostess at Madisons Bar and Grill and was requested to leave because of her braids. Her hours were then cut until she was eventually fired. The Quebec Human Rights Commission held McNickle was the victim of racial and gender discrimination and ordered the restaurant’s owner to pay $14,500 in damages. The case will proceed to the Human Rights Tribunal, as McNickle had not received the money as of 2018.
In the 2010 Human Rights Tribunal of Ontario case, Armstrong v. Anna’s Hair & Spa, a salon that refused to massage or wash Armstrong’s hair, arguing they don’t do “Black hair” (his hair was in dreadlocks) was ordered to pay compensation of $1,000 and complete the Ontario’s Human Rights Commission’s (HRC) online training module on human rights. The application related to sections 1 and 9 of the Human Rights Code, which provides that “every person has a right to equal treatment with respect to services without discrimination because of a number of grounds, including race, colour, and ethnic origin, and no person shall infringe or do, directly, or indirectly anything that infringes a right.”
The amount awarded is low: although the Tribunal recognized the humiliation, “hurt feelings”, and affront to dignity suffered by the complainant, it found that the respondent’s offensive treatment was on the “low end”.
Subsection 45.2 of the Human Rights Code provides the remedial powers of the tribunal to issue an order directing a party who infringed a right to (1) pay monetary compensation, (2) make restitution to the party whose right was infringed, and (3) perform any act the tribunal believes the party ought to do to promote compliance with the Act.
Requesting that a defendant complete the human rights online training module seems to be a common sanction in discrimination cases heard at the Ontario Human Rights Tribunal. However, one can question its efficacy since there is insufficient evidence that implicit bias training actually works, with some evidence even suggesting that it does not work because it was never meant to.
The rationale behind the training modules of the Human Rights Commission is said to be that they are “central to any effort to build a “human rights culture” within an organization […] [and] can deepen understanding and awareness of human rights issues.” While the issues of race-based hair discrimination previously mentioned are direct rather than implicit, it is possible to draw parallels and similar inferences for these training strategies.
The Tribunal recognized that anti-black racism is embedded in the community’s psyche and found that the subtle manifestations of Anti-Black racism are well-recognized in Canadian law. It further noted that assumptions about “Black” hair, like the ones verbalized by the hair salon are nonsensical and stereotypical, and we don’t apply such statements to “white” or “Asian” hair.
While the HRC training seeks to encourage organizations through knowledge of the Code and human rights issues to comply and avoid discriminatory behaviour, one may wonder how effective these can be when much of the discriminatory practices have been entrenched in the community.
While hair discrimination is common in Canada, Canadian law remains mostly silent on the matter. Currently, hair is not directly recognized as a protected ground and rather falls within the protected ground of race. While race-based hair discrimination is obviously racist, the lack of explicit protection by the law maintains some ambiguity as to whether hair can be protected, leaving space to argumentation on its immutable nature. Consequently, in cases of hair discrimination, seeking justice through the legal system can often be impossible or costly for claimants.
Conclusion
Black hair has been an important part of Black liberation movements. Canadian civilian rights leader, Viola Desmond, who is featured on some of our ten-dollar bills, launched the first hairdressing school of its kind in Nova Scotia after being rejected by all beautician schools for being Black.
The recognition of the insidious policing of Afro-textured hair and the assertion by American law that Afro-hairstyles are just as “professional” as blowouts is a necessary step for race equality.
Alongside other Black liberation movements throughout history, there have been multiple waves of the natural hair movement, each marking a different era and significance of Black hair in the sociopolitical sphere. The movement encourages Black people to proudly wear their hair in their natural or cultural styles. The number of high-profile Black women seen in their afro hairstyles is increasing. The CROWN Act finally legitimizes the demands of generations of Black women. Thus, we are starting to see a shift in the space and discourse surrounding afro hair. Legal protection against discrimination and a drastic cultural shift on views surrounding Black hair would allow future generations of Black girls to embrace their natural curls without fear of microaggressions, educational, and employment discrimination.
The recent American NIH study, linking chemical hair straightening products to uterine cancer and showing higher rates in Black women has led to a series of lawsuits against hair product companies who sell damaging products. This study provides the medical evidence that race-based hair discrimination is a health law issue.
The current state of Canadian law does not adequately protect Black people from being discriminated against on the basis of their hair texture or choice for protective styling. For the sake of promoting race equality, Canadian policymakers ought to consider implementing measures similar to the CROWN Act.
Annaëlle Barreau is the Executive Online Editor at the McGill Journal of Law and Health. She is currently in her second year of the JD/BCL program at McGill University’s Faculty of Law. Prior to starting law school, she obtained a Bachelor of Psychology and Sociology from McGill University.
McGill Journal of Law and Health 