On March 18, 2022, the U.S. House of Representatives passed the Creating a Respectful and Open World for Natural Hair (“CROWN”) Act. If passed into law, the CROWN Act would become an extension of Title VII of the Civil Rights Act of 1964, where it would prohibit workplace discrimination based on a person’s hair texture or hairstyle, if that style or texture is commonly associated with a particular race or national origin.
Although the federal version of the law is new, at least 13 states and multiple municipalities have already enacted a version of the CROWN Act. As a result, employers need to understand the legal framework surrounding hair discrimination and consider what next steps make sense for their organization.
Race or National Origin Discrimination on the Basis of Hairstyle and Texture
In February 2019, the New York City Commission on Human Rights (“NYCCHR”) became the first jurisdiction to provide guidance on how dress codes, grooming policies, and other general hiring and employment practices can perpetuate race and national origin discrimination. In its Legal Enforcement Guidance on Race Discrimination on the Basis of Hair, the NYCCHR clarified that the New York City Human Rights Law (NYCHRL) protects the rights of New Yorkers to maintain natural hair or hairstyles closely associated with their racial, ethnic, or cultural identities.
California lawmakers mirrored the NYCCHR on July 3, 2019, when California became the first state to enact a CROWN Act. California’s Crown Act expanded the definition of “race” under its state anti-discrimination law to include both hair texture and protective hairstyles closely associated with race. More specifically, the California CROWN Act bars dress and grooming policies that prohibit natural hair because these policies have a disparate impact on Black applicants and employees.
In addition to states that have already enacted similar litigation (California, Colorado, Connecticut, Delaware, Maine, Maryland, Nebraska, Nevada, New Jersey, New Mexico, New York, Oregon, Virginia, Washington, and the U.S. Virgin Islands), multiple other states are considering similar legislation.
For example, on 9 April 2022, the Illinois Senate passed House Amendment 1 to SB 3616, joining the Illinois House, in unanimously passing a state-level CROWN Act. The Act is expected to be signed into law. The Illinois law defines ‘race’ under the Illinois Human Rights Act to include ‘traits associated with race, including, but not limited to, hair texture and protective hairstyles. Similarly, the Massachusetts and Tennessee legislatures have also passed hair discrimination bills, which will soon be sent to their respective governors for signature.
The CROWN Act at the Federal Level
At the federal level, the CROWN Act is to designed to protect people of Black or African descent from discrimination associated “longstanding racial and national origin biases and stereotypes associated with hair texture and style.”
Thus, the CROWN Act, as passed by the House, prohibits employment discrimination against an individual “based on the individual’s hair texture or hairstyle, if that hair texture or that hairstyle is commonly associated with a particular race or national origin (including a hairstyle in which hair is tightly coiled or tightly curled, locs, cornrows, twists, braids, Bantu knots, and Afros).”
Although the U.S. House passed the CROWN Act last month, it is unclear whether the Senate will do the same. But of importance, even if the CROWN Act does not survive the Senate, the trend towards protecting hairstyles and textures associated with a particular race or national origin in the workplace shows no signs of stopping at the state and local level.
Dress codes and grooming standards will likely remain common fixtures in the workplace, but those policies will need to evolve to comply with all applicable laws. To that end, employers should consider the following next steps:
Review and update dress codes and grooming policies to ensure that they are both (1) clearly connected to the company’s business interests and (2) inclusive of hair texture and hairstyles connected to racial and ethnic identity, as well as religion and gender identity.
Employers may require professional appearance in the workplace but should refrain from altogether banning or restricting particular hairstyles. For instance, employers should avoid instituting policies:
Specifically prohibiting specific hairstyles.
Requiring employees to alter the state of their hair to conform to the company’s appearance standards, including having to straighten or relax hair.
Banning hair that extends a certain number of inches from the scalp.
Restricting employees from holding specific roles (such as customer-facing positions) based on an employee’s or applicant’s hairstyle.
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 applied consistently.
Training employees, especially supervisors, managers, and anyone who makes hiring decisions, on the organization’s dress and grooming policies, as well as their EEO policies.
Finally, employers should keep a close eye on legislative and regulatory developments across the country to ensure compliance and consider how proactively auditing and updating policies, practices, and training can advance their compliance and inclusion efforts.