Hair discrimination: new EHRC guidance

The EHRC has recently published guidance on preventing hair discrimination in schools. This article looks at what hair discrimination is, why it’s problematic, what the guidance says and what schools should be doing in light of the guidance.

India Arie’s captivating song “I am not my hair” was a song that always resonated with me as a teenager struggling with unruly curls. The song was aimed at empowering Black women, and reminding them that Eurocentric standards of beauty are not the measure of their own worth or desirability. Whilst I still feel that the message in the song is incredibly powerful, I also believe that hair very much defines who we are, as for some people, it represents their cultural identity, and social customs honouring their ethnicity.

While the Equality Act 2010 protects against racially motivated discrimination, people have continued to suffer from prejudice and hair discrimination. The Equality and Human Rights Commission (EHRC) have now published long overdue and welcome guidance on preventing hair discrimination in schools.

What is hair discrimination?

Under the Equality Act 2010, it is unlawful to discriminate against others with certain protected characteristics, including race, religion or belief, age, disability, marriage and civil partnership, pregnancy and maternity, sex, sexual orientation and gender reassignment.

Hair discrimination is the unjust act of discriminating against others for their natural hair or protective hairstyles associated with their racial, ethnic, and cultural identities. Hairstyles worn because of cultural, family and social customs can be part of a pupil’s ethnic origin and fall under the protected characteristic of race. This includes natural Afro hairstyles, locks, cornrows, and head coverings amongst other styles.

Discrimination can range from describing someone’s hair as “inappropriate”, “unprofessional” or “untidy” through to complete bans on particular hairstyles. For instance, indirect discrimination can arise when a school applies an apparently neutral policy that produces a result which disadvantages pupils with a protected characteristic as compared to other pupils who do not have the protected characteristic. The perception that natural Black and Afro textured hair is “inappropriate” or “unprofessional” has often permeated Schools and negative biases have been shown to children who wear their way in a natural way that is part of their culture. Forcing children to change their hairstyles in order to “fit in” within the dress code is an erasure of their identity.

Why is hair discrimination problematic?

According to a new study conducted by Dove, more than half of Black children have been sent home from school due to wearing their hair naturally or in a protective hairstyle. The EHRC has found that discrimination related to hair or hairstyles disproportionately affects pupils with Afro-textured hair or hairstyles.

Discrimination against pupils in relation to or because of their hair may have a profoundly negative effect on their mental health and wellbeing and impact how they connect with their identity and heritage. Schools have safeguarding obligations to protect pupils from race discrimination and bullying, and hair discrimination is often one of the overlooked issues that schools must confront in order to create a safe, inclusive and supportive environment for all pupils, regardless of their cultural backgrounds.

What does the EHRC’s preventing hair discrimination guidance say?

In the new guidance on preventing hair discrimination, the EHRC states that school policies that ban certain hairstyles adopted by specific racial or religious groups, without the possibility of any exceptions on racial or religious grounds, are likely to be unlawful on the grounds of indirect race or religion or belief discrimination unless the school can demonstrate the policy is a proportionate means of achieving a legitimate aim. This means:

• The legitimate aim must be an objective consideration that is rationally connected to the measure proposed and not in itself discriminatory (for instance, a “no beards” policy for health and safety reasons does not achieve a legitimate aim),
• Working out whether the means is “proportionate” is a balancing exercise, and
• If there are other less discriminatory steps that could have been taken to achieve the same aim, it will be hard to justify discrimination.

The guidance provides references to useful case study examples related to hair discrimination alongside “good practice examples” to illustrate how schools can identify issues and subsequently improve their policies and practices to avoid indirect discrimination. The new resources, which are endorsed by World Afro Day and the All-Party Parliamentary Group for Race Equality in Education, will help school leaders ensure that hair or hairstyle policies are not unlawfully discriminatory.

What schools should do now in light of the guidance?

Following the publication of the EHRC guidance, schools should take proactive steps to ensure that they are protecting all their pupils against any hair discrimination.

Reviewing policy and considering requests for policy change

Schools should continue to review and monitor their policies and practice to determine if they might disadvantage a particular group of pupils who share a protected characteristic. It is important to take into account any complaints made and make adjustments where necessary. The EHRC guidance includes a decision-making tool which is intended to help schools to prevent any potential discrimination related to hair or hairstyles when drafting or reviewing relevant school policies. It sets out useful questions that schools should ask themselves when considering developing a policy, including (as well as a number of other points):

• What are the aims of rules on hair and hairstyles and what are they trying to achieve?
• Whether the rules are necessary to achieve those aims?
• How do the rules affect pupils?
• Does the policy meet pupils’ needs?
• Whether the school has completed an equality impact assessment regarding their policy on hair or hairstyles.

Consultation and co-design

Schools should carry out appropriate consultation when conducting the review of their policies and make sure that affected groups are involved in the conversation. Furthermore, complaints procedures should be easy to understand and available to parents, carers, pupils, and members of staff to enable them to voice any concerns on rules that might affect them. Since indirect discrimination is not always obvious, it is beneficial to ensure that affected individuals are heard and involved in the process, so that you are aware of their concerns, and how they will be affected by policies.

Where a new policy is introduced, schools should be clear about their legitimate aim(s) for implementing the policy or rule and clearly communicate such reasons behind the decision to affected groups and their parents.

Schools may also want to consult with organisations that have expertise on this issue. The Halo Code is a campaign pledge that promises members of the Black community that they have the “freedom and security to wear all Afro hairstyles without restriction or judgment”. Head teachers can sign the code which means that everyone in the school recognises and celebrates all staff and students’ identities.

Training

A survey by the World Afro Day campaign found that only 12% of teachers across the UK had received equality and diversity training that included policies on hair. Schools should provide an ongoing programme of effective equality and diversity training that is tailored and not just a “tick box” exercise. All staff should understand relevant school policies and how to respond appropriately to requests to diverge from it where appropriate exemptions are to be made. Training should also equip staff to recognise unacceptable language and behaviour concerning pupils’ different hair and hairstyles. The EHRC guidance sets out useful advice on expressions to avoid, such as “distracting”, “inappropriate” and “exotic” amongst others. These are terms which may have negative connotations and therefore it is good practice to avoid labelling hairstyles in a derogatory manner. The severity of discriminatory language must be highlighted and ought not be dismissed.

Normalising different hair textures and styles by positive images

There is an ever-growing expectation for schools to actively foster equality and diversity in relation to hair discrimination. The EHRC encourages schools to organise a range of activities throughout the year that include Black role models and that celebrate Afro-textured hair. Additionally, use of poster displays can be beneficial as a positive embracement, which can build pupils’ confidence with natural hair and hair textures. Furthermore, educating other pupils as to why certain exceptions to the policy are made is important in avoiding a widespread disobedience due to lack of understanding. Hair discrimination is not an issue solely for the pupils that are affected, it should be a continuing dialogue between all staff and pupils at the school to ensure a safe and inclusive space for learning is provided to all pupils.

India Arie chants “I am not my hair, I am not this skin I am not your expectations…I am the soul that lives within”. And whilst we shouldn’t be defined by how we look, we should also ensure that we are allowing people to embrace and celebrate their culture identity without judgment.

For more on this topic, you can listen to a podcast by Katie Fudakowski, Partner in the Farrer & Co’s Safeguarding Unit, with Ayesha Casely-Hayford, founder of Afro Archives UK, and Laith Dilaimi, Barrister at Old Square Chambers. Listen here.

With many thanks to Arisa Terada, a paralegal in the Employment team, for her help with producing this blog.

If you require further information about anything covered in this blog, please contact Shehnal Amin or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2022