Is the New York Yankees' Facial and Grooming Policy in Violation of Title VII?

On opening day, April 11, 1973 former New York Yankee team owner George Steinbrenner was present to watch his recently acquired Major League Baseball franchise. As players warmed up pre-game, Steinbrenner immediately noticed some players had hair that was long enough to be visible below their collar. As a result, garnishing inspiration from his veteran status with the U.S. Air Force, as well as having a successful tenure in corporate America, Steinbrenner adopted the still standing New York Yankees Facial and Grooming Policy.

The official employment policy establishes that, "All players, coaches and male executives are forbidden to display any facial hair other than mustaches (except for religious reasons), and scalp hair may not be grown below the collar. Long sideburns and 'mutton chops' are not specifically banned.”[1]

For the last 47 years, Yankee players have had little to no input as it pertains to their bodily autonomy in regard to facial hair and hairstyle. It begs the question, is any of this legal? In 2019, Sheryl Ring established how the policy is likely in violation of New York state law. Last year, Dylan Harriger, approached the issue from a first amendment standpoint. Here, I seek to assess the legality of the policy as it may hypothetically pertain to facial hair, Pseudofolliculitis Barbae (PFB), and Title VII of the Civil Rights Act, 42 U.S.C. s 2000e et seq. (Title VII).

Title VII prohibits discrimination in virtually every employment circumstance on the basis of race, color, religion, gender, pregnancy, or national origin. It applies to all employers with 15 or more employees. The purpose of Title VII's protections is to require employers to consider only objective, job-related criteria in making employment decisions.

An employment practice may be in violation of Title VII as a result of the employment actions discriminatory “disparate impact” or “disparate treatment”. A claim arguing that an employment grooming and facial hair policy is discriminatory, such as the Yankees, would likely have a discriminatory disparate impact as an employer’s facially neutral policy has a disproportionate and unintended effect on a protected race.

In a disparate impact claim under Title VII the plaintiff is required to prove their prima facie case by identifying a specific employer policy or practice that applies to all employees equally. The Plaintiff must prove: (a) The Policy, procedure, or practice is a barrier to employment opportunities; (b) for members of a protected class; (c) has an adverse impact on that protected class; and (d) the adverse impact is caused by the specific employment practice.

Subsequently, the defendant can prevail by showing that the requirement is job related and consistent with a business necessity. An employer can sustain this defense by demonstrating that the challenged practice has a manifested relationship to the relevant job. Even if the defendant satisfies their aforementioned burden, the plaintiff can still prevail by establishing that there is an alternative employment practice available with less discriminatory impact that still satisfies the employer’s business need.

As the federal case law on the matter suggests, the New York Yankees unique facial hair and grooming policy is likely in violation of Title VII. It is true that federal courts routinely dismiss race discrimination claims challenging grooming codes in the work place. However, the specific requirements of the Yankees current standing policy likely render it federally illegal, specifically due to its restrictions on facial hair as the policy pertains to a hypothetical, Black employee, diagnosed with PFB.

One of the leading cases on employment facial hair policy is, University of Maryland at Baltimore v. Boyd, 612 A.2d 305 (Md. 1992). In Boyd, an employee succeeded on a claim that the University of Maryland at Baltimore’s facial hair policy was discriminatory as it related to African Americans. This specific policy was found to be discriminatory due to the fact that African American men are more likely to be affected by a skin disease known as PFB.[2] PFB can render the practice of shaving and facial grooming incredibly painful. Since this disease is specific to African American men, and is unquestionably immutable, the court found the policy to be in violation of federal law, as the policy had a disparate impact on a protected class of employees.

In defense of its policy, the University argued that grooming standards of their employees are important to reflect in their view the correct public image. However, the court held that, “[t]his business necessity, however, is outweighed by the discriminatory impact of the policy. Other evidence introduced at the hearing showed that similar organizations with similar grooming policies allowed officers, diagnosed as suffering from PFB, to grow neatly trimmed beards in order to alleviate the condition.”

Similarly, the plaintiff in, Richardson v. Quick Trip, 591 F.Supp.1151 (S.D. Iowa 1984), challenged an almost identical employment policy that restricted the growth of facial hair. The court in Richardson found, “[s]cientific studies indicate that between forty-five to eighty-three percent of all Black males who shave may be excluded from employment with the defendant because their PFB condition makes compliance with the no-beard policy insufferable. Less than one percent of white males are so hindered in obtaining employment with the defendant.”

The defendant-employer argued that this policy was a business necessity, as any other facial hair policy would lead to an increase in customer dissatisfaction, however, the court held in favor of Richardson. Specifically, its holding established that the employer “can limit the perceived threat of customer dissatisfaction previously discussed by enforcing the no-beard policy against all employees except those who provide a medical certificate showing that they are afflicted by PFB.” As a result, the court held that the plaintiff’s discharge for violation of defendants "no-beard policy" constituted racial discrimination, as the policy had an unquestionably had a discriminatory disparate impact on African-American men, diagnosed with PFB.

The employment policy in Boyd and Richardson would both likely be found to be analogous to the one in question. The Yankees have signed numerous African American males, with facial hair other than mustaches throughout the last nearly five decades, such as, former National League Most Valuable Player, Andrew McCutchen. All of those who ended up playing for the organization have had to shave their facial hair. McCutchen was outspoken against the policy. Years after he had to shave his trademark dreadlocks and facial hair, McCutchen stated, “I definitely do think it takes away from our individualism as players and as people. We express ourselves in different ways.”[3]

Other MLB stars have even refused to sign with the Yankees due to this policy. In 2013, Pitching-Ace David Price stated he would never sign with the Yankees due to their facial hair and grooming standards.[4] Consequently, the Yankees facial hair and grooming policy resulted in the organization potentially missing out on signing the previous season’s American League Cy Young Award winner.

Recently, in Bey v. City of New York, 999 F.3d 157 (2d Cir. 2021), New York City based African American male firefighters, who had been diagnosed with PFB, brought a discrimination claim against city and the Fire Department of New York (FDNY). They alleged that the department's rescission of an accommodation exempting plaintiffs from the department's “clean-shave standard” for personal grooming was in violation of Title VII. This employment standard was put in place to comply with Federal Occupational Health and Safety (OSHA) regulations and New York State laws ensuring that facial hair does not inhibit a fireman’s respirator from fitting properly when worn.

The Second Circuit affirmed the grant of summary judgment in favor of the City of New York the FDNY on the Plaintiffs’ Title VII claim. This is due to the fact that the City raised the defense that they could not comply with the accommodation asked of by the plaintiffs due to the fact that the respiratory-protection standard is a business necessity. The court made clear however, when there are no federal safety regulations that require an employer to follow a specific employment practice, discriminatory disparate impact will be found.

As the City did in Bey, if a similar case was brought against the Yankees, they would likely argue that facial hair policy was a business necessity. However, unlike firemen, there exists no OSHA standard or state law requiring baseball players to shave for their safety. As such the defense would likely be found as pretextual, and the Plaintiff-employee would prevail.

Political and legal scholars have disagreed about the neutrality of dress and grooming policies. Many contend that they implicitly enforce culturally “white norms”. See Devon W. Carbado and Mitu Gulati, Acting White?: Rethinking Race in Post-Racial America (2013); Angela Onwauchi-Willig, Another Hair Piece Exploring New Strands of Analysis Under Title VII, 98 Geo. L.J. 1079 (2010).

Currently, professional baseball players, such as Fernando Tatís Jr., are demonstrating employment autonomy and choice when dealing with their respective organizations. Major League Baseball is currently seeing an influx of new stars who are able to bring a new energy to the league through their expressionism and individualism. Despite this however, Steinbrenner’s policy has remained unchanged, and is continuously proving to be more antiquated with each passing season. Even the U.S. Air Force policy, which was Steinbrenner’s influence, has subsequently made several changes in the interim, allowing for men’s facial hair medical exemptions.[5] Is such a potentially legally discriminatory employment practice morally, ethically and or politically responsible for the second most valuable professional sports franchise in the world to continue?[6]

[1] https://www.mlb.com/news/no-beard-in-the-bronx-brian-wilson-wont-shave-for-new-york-yankees/c-63902080 [2] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6585396/ [3] https://www.youtube.com/watch?v=LN4V4eqYOZA&t=224s [4] https://www.wsj.com/articles/SB10001424127887324048904578320741510151474 [5] https://www.operationmilitarykids.org/air-force-grooming-standards/#men-regs [6] https://www.espn.com/soccer/barcelona-espbarcelona/story/4382031/barcelona-ranked-worlds-fourth-most-valuable-sports-team-forbes