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Chambers & Partners
02/11/2020

Black History Month – Afro Hair: Heritage, Identity and Discrimination

News, Events

On Wednesday 28th October via zoom, we welcomed hundreds of delegates for a topical thought-provoking discussion on afro hair for Black History Month entitled “Afro Hair: Heritage, Identity and Discrimination”.

Below is a summary of the session and link to a recording of the event.

Nadia Motraghi: To celebrate Black History Month this year, Old Square Chambers decided to discuss Afro hair and specifically issues related to heritage, identity and discrimination with the help of new silks, Ijeoma Omambala QC and Rebecca Tuck QC, and external speaker, Ayesha Casely-Hayford.

As an employment lawyer, actress and voice artist, Ayesha was ideally placed to create the web, video and radio project, Afro Archives UK, which explores heritage, image, and the political and social implications of working and performing with Afro textured hair, particularly for black women. We heard from Ayesha about some of those experiences as well as how those contrasted, as well as exploring issues relating to gender and age.

Rebecca Tuck QC compared and contrasted the approaches taken in the UK Courts and those in the US on Afro hair in discrimination cases as well as other hair based discrimination claims.

Ayesha and Ijeoma Omambala QC discussed their experiences of working and performing with Afro textured hair in the legal profession and performing arts over the course of their careers as well as whether Afro hair should be treated as a separate protected characteristic under the Equality Act 2010.

We were pleased that this was a subject matter which struck a chord with so many of those attending sharing stories of their own experiences as well as relevant cases they had been involved in. We do hope to keep the conversation going, please do see the links below for further resources on Afro Hair including Ayesha’s videos via the Afro Archives website.

Rebecca Tuck QC sets out her reflections below; enjoy!

HAIR 

Hair: for most of us it is an integral aspect of our appearance, and with a balding husband, I know its absence just as much as its presence can be a matter of sensitivity. For a woman it can be her “crowning glory”. For a barrister, it can be something to hide under a horsehair wig – based at least in part on the idea that without our hair on display we all look the same.  For a person who does not have European textured hair there are probably a multitude of decisions to be made… natural, treated or untreated, relaxed, locs, cornrows, twists, braids, bantu knots, fades ….  That person may well be judged on their choice and whether it is “smart”, “tidy”, “excessive”? But what are they judged against? Convention, the school uniform policy or the work dress code?

In the USA while the Supreme Court refused to hear the case of Chastity Jones – a woman whose job offer was rescinded when she declined the invitation to cut off her dreadlocks which HR feared had a “propensity” to be messy – not that hers were- some states have taken a proactive approach. In California and New York less favourable treatment of people based on hair or hairstyle is now considered to be a form of race discrimination under the aptly named Crown Act.

So what protection is there in the UK if a person seeks to complain that they have suffered discrimination because of their hair?

Section 9 of the Equality Act 2010 defines race as including “colour, nationality and ethnic or national origins”.  Back in 1982 (long before discrimination because of religion was prohibited) the House of Lords in Mandla v Lee [1982] UKHL 7 held that a Sikh boy who was refused a place at an independent school because he wore a turban, which was contrary to their uniform policy, was the victim of direct race discrimination. Sikhs were said to constitute an “ethnic group” as they had a ‘long shared history of which the group is conscious as distinguishing it from other groups’ and a ‘cultural tradition of its own, including family and social customs and manners’. Rastafarianism was not however held to be a defined ethnic grouping in Crown Suppliers v Dawkins 1993 ICR 517, such that a Rastafarian refused a job because of his dreadlocks could not succeed in his complaint of direct race discrimination.

More common perhaps, are claims of indirect discrimination complaining of the “provision, criteria or practice” of a uniform or dress code policy which places those who share a protected characteristic (eg Afro-Caribbean students) at a particular disadvantage compared to those who do not have that characteristic. A schoolboy who wore his hair in cornrows and was turned away from school on his first day succeeded in his indirect race discrimination claim in  G (by his litigation friend) v Head Teacher & Governors of St Gregory’s Catholic Science College [2011] EWHC 1452 (Admin). To similar effect, last year a ‘no beard’ policy was found to indirectly discriminate against Sikh men in Sethi v Elements Personal Services Ltd ET – London central (EJ Stout) 19 Nov 19.

Schools very commonly have uniform policies – and often policies in relation to how hair can be worn. When Ruby Williams sought to comply with her school uniform policy which said “afro style hair, including buns, should be of reasonable size and length”, the 14 year old would spend at least 30 minutes each morning trying to style her hair into something deemed by the school to be “reasonable” – with her hairline receding as she pulled her hair back. Her complaint of indirect race discrimination supported by the EHRC was settled on the basis of no admission of liability, for £8500. She did not get an apology.

These cases also bring to my mind those concerning the wearing of Islamic headscarves or veils at work, and the insistence by some that it is important to see somebody’s face for them to do their job effectively. The wearing of facemasks to protect against Coronavirus has demonstrated on an enormous scale the fallacy of that viewpoint.

Perhaps now is the time to consider whether to be ‘smart’ and ‘tidy’, we need styles of hair usually seen on white people. Our primary concern whether in work or school should surely be about a person’s work output, or their learning – and policies should assist in creating the right environment for these to thrive. If a person cannot “bring their authentic self” to their workplace or classroom, surely we need to challenge OUR rules not their appearance?

Video:

Below is a link to a recording of the seminar.

View Video

Passcode: =gR^84mV

Speakers

Ijeoma Omambala QC

Ijeoma Omambala QC 020 7269 0357 Email

Rebecca Tuck QC

Rebecca Tuck QC 020 7269 0357 Email

Nadia Motraghi

Nadia Motraghi 020 7269 0357 Email

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