The Yankees’ facial hair policy might have gotten overruled

If you’re a Yankees fan, or just a baseball fan generally, you probably know about the Yankees’ facial hair policy—an edict so famous it has its own Wikipedia page.

Its origins lie with (who else?) George Steinbrenner, and the policy was enacted as one of the Boss’ first acts as team owner.

At Yankee Stadium’s home opening game on April 11, 1973, the new owner and managing general partner, George M. Steinbrenner III was on-hand to see his team. As he watched his players line up along the foul lines and remove their caps for the national anthem, Steinbrenner pulled out an envelope from his suit pocket. He began writing down a series of numbers on the back of the envelope.

After the game the envelope was given to manager Ralph Houk.

“What is this?” Houk wanted to know.

Players who need a haircut was the reply.

Still not knowing any of his players names, Steinbrenner had listed the players numbers who had hair that was not to his liking. Among the stars on the list were Bobby Murcer, Fritz Peterson, Thurman Munson, Sparky Lyle and Roy White.

The policy itself states thusly:

“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.”

But seventies’ nostalgia aside, the policy has been widely derided for some time, with calls for its abolition interspersed with satire. Lou Piniella famously challenged the policy with Steinbrenner, to amusing effect.

“I don’t understand, Mr. Steinbrenner, what long hair has to do with your ability to play baseball,” Piniella said. “I’m a Christian. Our Lord and Savior Jesus Christ had hair down to the middle of his back, and it didn’t affect the way he went about his work.”

In response, Steinbrenner said, “Oh, really? . . . come with me,” and led Piniella out to a pond beyond the left field wall.

“You see that pond, Lou?” he said.

“It’s about seven to eight feet deep. If you can walk across it, you can wear your hair as long as you want.”

Steinbrenner’s edict has forced players from Johnny Damon to Jason Giambi to Andrew McCutchen to shave their facial hair. Some premier free agents have even avoided the Bronx Bombers due to the policy.

One-time Giants relief ace Brian Wilson turned down an offer from the Yankees in favor of keeping his beard. David Price once said New York was “not for me” so long as the policy remained in effect.

“‘It’s a joke to me, that I had less rules in college than I would on some Major League teams. That’s not my style, man. I couldn’t do it on some of these teams I hear about. I couldn’t do it. I’m a grown man,’ Price said. ‘If I ever did hit that free-agent market, there would be teams I wouldn’t sign with simply because of the stuff that I’ve heard – every rule they have. Being here since 2007, being treated like a grownup, given that respect and freedom and space – it grows on you.’”

The policy was raised again when Dallas Keuchel was a free agent this offseason, with questions swirling regarding whether the southpaw would shave his famous beard, and given the prevalence of bearded players in the modern game, questions surrounding the team’s policy—now, nearly a half-century old—haven’t gone away.

That’s also before we get to the legal ramifications of the policy. Last year, I talked with Matt Gregory of Locked on Yankees about the potential for the policy to run afoul of religious discrimination laws, even given the religious exemption contained in the policy. As late as this Spring, it seemed that the policy was probably legal. Then, earlier this summer, New York state banned discrimination in employment on the basis of hair. Frank Wu, former chancellor and dean of the University of California Hastings College of Law, explained that hair discrimination is deeply tied to race.

“Social superiors set the aesthetic standards others are forced to meet. Blacks are supposed to imitate Whites, and natural hair is associated with dirtiness, lack of neatness, and, as explicitly as implicitly, unruliness. The line of thinking might not be expressed by those who would be embarrassed to have it exposed, but there is no other rationale: natural equals unkempt equals unprofessional. The same is true of bans on facial hair. There is disregard that for some men more than other men, especially with African ancestry, daily shaving presents health concerns such as razor bumps.”

For these reasons, the hair law (A07797, which you can read here) banned an employer from prohibiting, among other things, dreadlocks, braids, and twists. As a result, the hair discrimination law effectively renders the team’s restriction on hair below the collar very likely unlawful. Here’s why:

Whether or not a discriminatory practice is permitted depends on whether the discrimination is something called a bona fide occupational qualification (“BFOQ”). A BFOQ is a very long way of saying that an employer is allowed to exclude people on the basis of criteria like gender or religion if it’s required to do the job.

For example, if Hanes needed a male model for its underwear, they’re legally allowed to look for men only to fill that role. However, race can never be a BFOQ. That means that because the hair law is based on race, there is never a BFOQ that can justify regulating hair length or style. In other words, if Freddy Galvis were to sign with the Yankees tomorrow, the Yankees cannot legally require him to cut his hair.

A07797 was followed by another statute just signed by Governor Andrew Cuomo, which banned discrimination in employment on the basis of clothing or facial hair. You can read the signed bill, S4037, here. S4037 is slightly different than A07797, in that it seeks to prohibit religious-based, rather than race-based, discrimination, and therefore is subject to BFOQs. On the one hand, it would seem to track with the Yankees’ appearance policy - after all, it does provide for religious exemptions. On the other hand, S4037, by its terms, goes much farther.

Known as the “Religious Garb Bill,” the measure puts the onus on an employer to show that appearance, such as facial hair, or the wearing of religious items, such as turbans, yarmulkes or hijabs, would present a hazard or prevent a worker from doing his or her job.

In other words, S4037 requires an employer to accept facial hair except where that facial hair is a hazard or interferes with the job. The Yankees’ policy is the exact opposite. Under S4037, the default is allowing facial hair; under the Yankees’ policy, the default is prohibiting it. Under S4037, the employer must establish that facial hair interferes with the job; under the Yankees policy, the employee must establish a religious reason. In other words, the Yankees’ policy is fundamentally at odds with S4037, to the point where the two can’t co-exist. And, obviously, where the law and a team policy conflict, the law prevails.

Now, this doesn’t mean that Brian Cashman will hold a press conference tomorrow announcing the end of the policy. What it does mean is that any compliance by Yankees’ players with the policy is, at this point, essentially voluntary. If the policy were to be legally challenged, it would almost certainly fail. Now, the venue for that challenge may well not be a court, because of a doctrine called labor law preemption, which states that the Collective Bargaining Agreement governs relations between players and teams. But the CBA can’t bargain around anti-discrimination statutes, so the only real difference would be that an arbitration panel would be striking down the policy rather than a court.

So there you have it: as a legal matter, the Yankees’ facial hair policy is probably unenforceable. The question is whether the team is going to change it on its own or wait for it to be challenged... and that might be the most interesting question of all.