What’s Hair Got To Do With It? An Update on the Crown Act

By Jennifer Robinson, Elise Hofer McKelvey, and Corinn Jackson

Employers of all kinds have long implemented employee dress and grooming standards.  But before disciplining or terminating an employee based on their hairstyle, employers should make sure they are aware of new state and local prohibitions on hair discrimination in the workplace.

Specifically, several states and cities this year have passed or proposed laws banning discrimination against employees and students for wearing hairstyles that are traditionally associated with people of Black or African descent.  The trend began in California, which became the first state to pass such a measure.  The Creating a Respectful and Open Workplace for Natural Hair (“CROWN”) Act, which was signed into law in July 2019 and took effect on January 1, 2020, amended the California Fair Employment and Housing Act’s definition of race to include traits historically associated with race, including hair texture and protective hairstyles.  Protective hairstyles include, but are not limited to, Afros, braids, cornrows, dreadlocks, twists, and knots.

Background

Over the past several years, there have been a spate of high-profile incidents in which Black people have been denied employment or participation in school activities or events due to their hair texture or hairstyles.  In 2018, a New Jersey high school wrestler was forced by an official to cut his dreadlocks or forfeit his match.  A video of the incident was viewed more than 14 million times, the incident became national news, and it led to a firestorm of criticism and accusations of abuse of power and cultural bias.  (The referee has since been suspended from his position for two years.)  Likewise, in 2020, a Black teen in Texas named Deandre Arnold was told he needed to cut his locks to comply with his school’s dress code or he would not be allowed to participate in his graduation ceremony.  The teen and his mother were later invited to attend the 2020 Academy Awards as the guest of director Matthew A. Cherry, who won the best Animated Short Oscar for his film “Hair Love.”  The film follows a Black father who is attempting to do his daughter’s hair for the first time.  Cherry used his acceptance speech to advocate for the CROWN Act, stating: “‘Hair Love’ was done because we wanted to see more representation in animation, and we wanted to normalize Black hair.  There’s a very important issue that’s out there, the CROWN Act, and if we can help get this passed in all 50 states, we can help stories like Deandre Arnold’s to stop from happening.”

Instances of discrimination based on natural hairstyle have not been limited to the school setting.  A recent study found that a Black woman is 80% more likely to change her natural hair to meet social norms or expectations at work.  Black women are also 50% more likely to be sent home or know of a Black woman sent home from the workplace because of her hair.  Indeed, California’s CROWN Act expressly notes that “[w]orkplace dress code and grooming policies that prohibit natural hair, including Afros, braids, twists, and locks, have a disparate impact on Black individuals as these policies are more likely to deter Black applicants and burden or punish Black employees than any other group.” 

Until the CROWN laws, however, this type of discrimination has generally avoided legal scrutiny.  Though Title VII of the Civil Rights Act of 1964 has always prohibited discrimination on the basis of race, courts historically have distinguished between “immutable” and “artificial” physical traits, holding that disparate treatment based on immutable characteristics (such as skin color) could give rise to a claim of race discrimination, whereas treatment based on artificial traits (such as hairstyle) could not.  In 2018, the U.S. Supreme Court rejected an opportunity to address this issue, declining to consider a lawsuit filed by Chastity Jones, a Black woman who was denied a job opportunity because she refused to cut her dreadlocks.  It is worth noting that the EEOC, which initially filed suit on behalf of Jones, already takes the position that personal characteristics associated with race, such as hair texture, are immutable characteristics that may support a finding of discrimination.

Other Jurisdictions Following Suit

Following California’s lead, many states have stepped in where the Supreme Court declined to act. Hair discrimination laws have also passed in Colorado, New York, New Jersey, Virginia, and Washington; in localities including Montgomery County, Maryland, and Cincinnati, Ohio; and New York City has issued hair discrimination guidance. Similar legislation is pending in states including Tennessee, Arizona, Colorado, Delaware, Florida, Georgia, Illinois, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Oregon, Pennsylvania, South Carolina, Virginia, Washington, and Wisconsin.  Moreover, in December 2019, Sen. Cory Booker (D-NJ) introduced similar legislation at the federal level.  Rep. Cedric Richmond (D-La.) introduced companion legislation in the U.S. House, joined by Reps. Ayanna Pressley (D-Mass.), Marcia Fudge (D-Ohio), and Barbara Lee (D-Calif.).

Recommendations

Existing federal laws have long limited the ability of employers to enforce dress codes and grooming policies.  For example, employers must reasonably accommodate employees with disabilities (such as those required to wear orthopedic shoes or supportive braces) and those with sincerely-held religious beliefs that require particular clothing, head or face coverings, jewelry, or facial hair.  With the passage of the CROWN Act in California, New York, and New Jersey, and given the trend of other states and municipalities following suit, employers will need to be more proactive in detecting and preventing bias against race and traits associated with race, including hair texture and natural hairstyles.  To that end, employers should consider the following:

• Review and update dress codes and grooming policies to ensure that they are neutral and clearly connected to the company’s business interests.  Employers may require professional appearance but should refrain from completely banning or restricting particular hairstyles.  In the case of health and safety concerns, employers should aim to implement non-discriminatory measures (such as hairnets or hair ties) and should identify options that will accommodate various hair textures and styles.  Employers should ensure that dress codes and grooming policies are consistently applied and should avoid restricting employees from holding specific roles (such as customer-facing positions) based on an employee’s or applicant’s hairstyle.

• Provide training for employees, especially supervisors, managers, and anyone who makes hiring decisions, to ensure that employees and applicants are not treated unfavorably because of hairstyles or other traits associated with race.

• Consider implementing diversity and inclusion training and engaging in efforts to support a racially inclusive working environment.

• Keep an eye on legislative and regulatory developments across the country to ensure compliance in all jurisdictions in which the CROWN Act becomes law.