Hairstyles at school: discrimination, human rights and new EHRC guidelines

1. The Equality and Human Rights Commission issued specific guidelines at the end of October on the issue of discrimination by schools based on the hair types or styles of its students. This follows high-profile cases including that of Ruby Williams in 2020 and Chickayzea Flanders in 2018, both of which led to the schools in question proposing a settlement.

2. Readers won’t need to explain that these issues overwhelmingly affect black and mixed-race children and youth, with afros, highlights and braids being singled out by uniform policies on the grounds that they are deemed unprofessional or messy. It also occurs when uniform policies make distinctions between male and female students.

3. Many of the issues raised in this guide have been reviewed in an article that Alice de Coverley and I wrote for the Education Law Monitor in April 2021, which is also available to read here. This article focused on exclusions and one-size-fits-all policies, with examples of indirect discrimination related to both race and religion. The fundamentals at play are likely to be common in both cases – and the Flanders case mentioned above was based on Chickayzea’s locks being a manifestation of his Rastafarian beliefs. I would recommend that the article be read alongside the EHRC guidelines for those interested in the matter, as it also considers the matter from the perspective of human rights law.

4. The EHRC guidelines make clear the possibility of indirect discrimination in such cases, going so far as to say that a policy prohibiting hairstyles adopted by specific racial or religious groups, without allowing exceptions for these patterns, is “likely to constitute unlawful indirect discrimination”.

5. It also clarifies that hairstyles worn as a result of cultural or social customs may be considered linked to ethnic origin – the possibility of indirect discrimination is therefore not limited only to styles linked to the inherent properties of a person’s hair. pupil, or in cases where a style is the manifestation of a religious belief.

6. The guidance also suggests that a requirement that boys’ hair be cut above the collar is likely to constitute indirect sex discrimination, as such a difference is unlikely to be objectively justified as a proportionate means to achieve a legitimate objective.

7. One would think that this is somewhat in tension with the case of Smith v Safeway Plc [1996] 2 WLUK 311, where, in an employment context, a male supermarket employee brought a lawsuit based on the ban on men having ponytails. The Court of Appeal determined that this was a case where, although the requirements differed between the sexes, the dress code as a whole did not treat either gender less favorably and employers have the right to reflect the “conventional” differences in appearance between the sexes. It is not clear how a background of education rather than employment would provide a principled basis for a difference in approach. The EHRC guidelines may therefore be effective in supporting the argument that, in this particular case, such treaty differences no longer exist to justify differential treatment.

8. The guidelines, although brief, are likely to provide support to schools and those advising them, and the decision-making tool annexed to the guidelines is particularly useful in defining the questions that a school may wish to consider when developing policy for this area.

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