The New York City Police Department (NYPD) issued an anti-bias message alert that warned sergeants and lieutenants about harassment or discrimination against red-haired officers. The story, reported in the New York Post, has met with mostly bemused responses from people who do not feel that redheads are a particularly disadvantaged group in the United States right now. It raises the question of exactly where hair color falls within the law of employment discrimination. To the extent that hair color is seen as an indication of race, ethnicity, or national origin, it could give rise to a claim for unlawful employment discrimination. The U.S. Supreme has never addressed the question directly, but lower courts have considered the role of hair color and other physical attributes.
According to the New York Post, no lawsuits against the city have alleged employment discrimination based on red hair. Officers quoted in the Post‘s story say they have “endured years of ridicule,” but none seemed to think that it rose to the level of actionable discrimination or harassment. From a legal standpoint, however, red hair could be a protected category if an employment practice had a significantly disparate impact on redheads. The Post article also quoted red-haired British model Lily Cole, who suggested that bias against redheads may be a bigger problem in the United Kingdom.
The Post article notes that many NYPD officers are “of Irish descent.” Around ten percent of people in Ireland and thirteen percent of people in Scotland have red hair, compared to less than one percent elsewhere, according to the IrishCentral website. Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on race or national origin, among other factors. Disparate treatment of people with red hair, if associated with ethnicity or national origin, could therefore be a ground for a claim of unlawful discrimination. A webpage listing common terminology used by the Equal Employment Opportunity Commission (EEOC) includes Irish-Americans in an informal list of “ethnic groups.” EEOC regulations include discrimination based on an individual’s “physical characteristics” as a possible form of national origin discrimination. 29 C.F.R. § 1606.1.
Courts seem to set a high standard of proof for alleged discrimination based on physical appearance. In a lawsuit that essentially alleged discrimination based on physical attractiveness, a Nevada federal judge noted the inherently subjective nature of appearance. “This court cannot discern a standard by which a jury would determine Defendant’s notion of attractiveness,” it held. Heilman v. Memeo, No. 3:03-cv-00683, order on summary judgment at 12-13 (D. Nev., Jun. 27, 2008).
The U.S. Supreme Court has never directly addressed discrimination of any sort on the basis of hair color, although it received a mention in a dissent to a case reviewing alleged racial bias in capital punishment. McCleskey v. Kemp, 481 U.S. 279, 339 (1987, J. Brennan, Marshall, Blackmun, and Stevens, dissenting) (“[I]f striking evidence indicated that…persons with blond hair, were disproportionately sentenced to death, such a state of affairs would be repugnant to deeply rooted conceptions of fairness.”) A New York federal court allowed the use of hair color as an example of bias in a claim for racial discrimination against the NYPD, when the plaintiff alleged that the NYPD treated a “blond hair and blue eyed” officer differently than similarly-situated Black and Hispanic officers. Rodriguez v. City of New York, 644 F.Supp.2d 168, 179 (E.D.N.Y. 2009).
The employment attorneys at the Resnick Law Group represent current and former employees in legal matters involving employment contracts, discrimination and others issues in New Jersey and New York. Contact us today online, at 973-781-1204, or at 646-867-7997 to see how we may assist you.
Order on summary judgment (PACER registration required), Heilman v. Memeo, No. 3:03-cv-00683, U.S. District Court, District of Nevada, June 27, 2008
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