On March 18, 2022, the US House of Representatives passed the CROWN Act (Creating a Respectful and Open World for Natural Hair). The CROWN Act would prohibit discrimination in employment based on a person’s hair texture or hairstyle when that hairstyle or texture is commonly associated with a particular race or national origin.
While the Biden administration supports the bill, the CROWN Act faces a steep climb in the current Senate. The House of Representatives voted mostly along the party line, with only 14 Republicans voting in favor of the bill. At least 10 Senate Republicans would need to vote in favor of the CROWN Act to avoid a filibuster and ensure its passage.
But regardless of the fate of federal legislation, since California became the first state to pass a CROWN Act in 2019, several states and localities have followed suit.1 Employers doing business in states with applicable CROWN laws – and employers everywhere who want to create a more inclusive and welcoming environment for all of their employees – should both understand the legal framework surrounding hair discrimination and consider what next steps for their company are useful.
Racial or national origin discrimination based on hairstyle and texture
In February 2019, the New York City Commission on Human Rights (NYCCHR) became the first jurisdiction to issue guidance on how dress codes, grooming policies, and other general hiring and employment practices can uphold discrimination based on race and national origin. In its Legal Enforcement Guidance on Race Discrimination on the Basis of Hair, NYCCHR clarified that New York City Human Rights Law (NYCHRL) protects the right of New Yorkers to obtain natural hair or hairstyles closely related to their race, ethnic Origin, or cultural identities.2 In this guide, the NYCCHR explains that negative feelings about black hairstyles and textures date back to the days of slavery. For example, “white slave traders initially described African hair and locs3 as ‘terrible’, leading to the commonly used term ‘dreadlocks’.”4 NYCCHR provided examples of how such sentiments have crept into many modern work environments over time5 and shaped the parameters of clothing and care policies,6 and other general employment practices.7 The NYCCHR emphasized that these guidelines may be preferential to white and European beauty standards and may require black people with certain hairstyles and textures to feel uncomfortable8th comply with these standards in the interest of their employment.
California lawmakers joined NYCCHR on the issue when California became the first state to enact a CROWN Act on July 3, 2019.9 This legislation expanded the definition of “race” under the state’s antidiscrimination law to include both hair texture and protective hairstyles10 closely related to race. More specifically, the California CROWN Act prohibits dress and grooming policies that prohibit natural hair, including afros, braids, twists, and curls, because these policies have different effects on black applicants and employees. The California Legislature has stated that US law and social norms have historically associated “blackness” with “unprofessionalism,” either explicitly or implicitly. Legislators stressed that “professionalism” in the workplace can become a cloak for European traits and mannerisms, and standards of care can serve as a false barrier to employment opportunities for blacks who don’t fit that pattern.
Black women can be particularly affected by certain dress codes and grooming guidelines. Indeed, a recent study11 found that Black women are 80% more likely to alter their natural hair to fit social norms or expectations at work, and Black women are 1.5 times more likely to be sent home or known by a Black woman who being sent home from work because of her hair. Overall, the study found that black women fear scrutiny and discrimination for showing their natural hair in the workplace.
Recently, several cases have been brought under both the CROWN Act and Title VII in which applicants and employees allege discrimination based on their hair texture or hairstyle.12
The CROWN Act at the federal level
With this in mind, US Rep. Bonnie Watson Coleman (D-NJ) introduced the CROWN Act to the US House of Representatives on March 19, 2021.13 The purpose of the CROWN Act is to protect people of black or African descent from routine – albeit often covert – obstacles to employment opportunities14 based on “longstanding racial and national prejudices and stereotypes related to hair texture and style”.15
For example, the CROWN Act, as passed by the House of Representatives, specifically prohibits employment discrimination against a person “on the basis of the condition of the hair or hairstyle of the person if that condition of hair or hairstyle is commonly associated with a particular race or national origin (including a hairstyle). where the hair is tightly coiled or tightly curled, locs, cornrows, twists, braids, bantu knots and afros).16 If enacted, the federal CROWN Act would be treated as if it had been incorporated into Title VII of the Civil Rights Act of 1964 for enforcement purposes.
Although the US House of Representatives passed the CROWN Act last month, it’s unclear whether the Senate will do the same.17 But importantly, even if the CROWN Act doesn’t survive the Senate, the trend to protect hairstyles and textures associated with a specific race or national origin in the workplace shows no signs of stopping at the state and local levels .
The CROWN Act at state and local level
As the state CROWN statute inch its way through the floor of Congress, states and localities across the country have been quick to enact laws outlawing racial or national origin discrimination based on hairstyle and texture.
At the top of California, Colorado, Connecticut, Delaware, Maine, Maryland, Nebraska, Nevada, New Jersey, New Mexico, New York, Oregon, Virginia, Washington and the US Virgin Islands recently passed state/territory hair discrimination legislation. Illinois, Massachusetts and Tennessee legislatures have also passed hair discrimination legislation that will soon be sent to their respective governors for signature. Similar legislation is pending in numerous other states/territories including Alabama, Alaska, Georgia, Indiana, Iowa, Kansas, Louisiana, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, Rhode Island, Tennessee, South Dakota, Utah, West Virginia, Vermont, Wisconsin, Washington DC and Puerto Rico.
Localities in Arizona, Colorado, Florida, Kentucky, Louisiana, Maryland, Michigan, Missouri, New Mexico, New York, North Carolina, Ohio, Pennsylvania, Washington, West Virginia, and Wisconsin have also passed laws prohibiting discrimination based on hair style and texture .
Dress codes and standards of care are likely to remain common fixtures in the workplace.18 However, evolving these policies can help employers not only comply with government regulations, but also make their workplaces more inclusive. The rise of state and local CROWN laws provides organizations with an opportunity to be more proactive in identifying and preventing prejudice against race and racial characteristics, including hair texture and natural hairstyles.
To that end, employers should consider the following next steps:
- Reviewing and updating dress codes and grooming policies to ensure they are both (1) clearly related to the Company’s business interests and (2) inclusive of hair texture and hairstyles related to racial and ethnic identity, as well as religion and gender identity.
- Employers can require a professional appearance in the workplace, but should refrain from outright banning or restricting certain hairstyles. For example, employers should avoid introducing policies:
- specifically, the ban on twists, locs, braids, cornrows, afros, bantu knots, or fades, which are styles commonly “associated with black people.”
- require employees to change the condition of their hair to meet company appearance standards, including the need to straighten or relax hair (ie., through the use of chemicals or heat).
- the ban on hair a certain number of inches from the scalp, restricting afros.
- Restrict employees based on an employee’s or applicant’s hair style from taking on certain roles (e.g. customer-facing positions).
- Where there are health and safety concerns, employers should strive to implement non-discriminatory measures (such as hairnets or hair ties) and should identify options that accommodate different hair textures and styles. Employers should ensure that dress codes and grooming policies are consistently applied.
- Educate employees, particularly supervisors, managers, and anyone making hiring decisions, about the organization’s dress and grooming policies, as well as its EEO policies.
- Implementing diversity or unconscious bias training and efforts to create and support a more inclusive work environment.
As legislators continue to focus on bias and discrimination in workplace policies and practices, the movement towards inclusion, equity and diversity (IE&D) in the workplace also shows no sign of stopping. Employers should keep a close eye on legal and regulatory developments across the country to ensure compliance and consider how proactively reviewing and updating policies, practices and training can advance their IE&D efforts.