On July 3, 2019, California became the first state to ban discrimination against hairstyles associated with a person’s race. Governor Gavin Newsom signed into law Senate Bill No. 188, the Create a Respectful and Open Workplace for Natural Hair (CROWN) Act, which amends the California Fair Employment and Housing Act (FEHA) and the California Education Code. The CROWN Act is effective January 1, 2020, joining similar laws recently passed in New York and New Jersey, and represents a developing trend in preventing workplace discrimination and harassment.
Hair discrimination gained national attention in December of 2018 when, during a high school wrestling tournament in New Jersey, a referee ordered a Black athlete to either cut off his dreadlocks or forfeit his match. During the bill-signing ceremony, Newsom recalled this incident and said that the law is long overdue. He emphasized that this type of discrimination gets "played out in workplaces, it's played out in schools — not just in athletic competitions and settings — every single day all across America in ways that are subtle, in ways overt."
A recent Dove CROWN Act study revealed that workplace biases especially affect Black women’s ability to embrace their natural hair. Of those surveyed, 80 percent expressed that they feel that they have to change their natural hair in order to fit into the office environment. It was additionally reported that Black women’s hair is 3.4 times more likely to be viewed as unprofessional.
Overview of the CROWN Act
The CROWN Act amends the definition of “race” under California’s FEHA and Education Code to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” The Act further defines “protective hairstyles” as including braids, locks, and twists.
Therefore, under the amended FEHA, covered employers—those with five or more employees—are prohibited from discriminating against an employee on the basis of their hairstyle. This includes implementing and enforcing a dress code or grooming policy that prohibits natural hair, such as afros and other styles listed under “protective hairstyles,” which has historically had a disparate impact on Black employees.
To understand the recent state activity in this area, it's helpful context to know the status of hair discrimination at the federal level. Race discrimination is federally prohibited under Title VII of the Civil Rights Act. The Equal Employment Opportunity Commission (EEOC) is the enforcing agency and their position is that racial discrimination includes “treating someone (an applicant or employee) unfavorably because he/she is of a certain race or because of personal characteristics associated with race (such as hair texture, skin color, or certain facial features).”
However, some federal courts have taken the stance that race discrimination only encompasses “immutable traits” or those which cannot be changed, such as skin color. Such was the case in Equal Employment Opportunity Commission v. Catastrophe Management Solutions, No. 14-13482 (September 15, 2016), in which the Eleventh Circuit Court of Appeals ruled that a company’s policy of banning dreadlocks did not violate the race discrimination provisions of Title VII.
Hair style and length are also addressed by the religious garb and grooming provisions of Title VII, which require employers to make exceptions to their policies and practices to accommodate the religious beliefs of employees and applicants. In the examples of such religious practices, the EEOC includes “adhering to shaving or hair length observances such as Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks).” But keep in mind these provisions do not cover situations where the hair or hairstyle is unrelated to religious beliefs.
Next Steps for Businesses
In the absence of clarity and coverage at the federal level, it is no surprise that California and New York are leading the charge to make changes at the state level. Similar hair discrimination laws have already been proposed in many states with others expected to soon follow.
Whether it’s to meet the requirements of current state hair discrimination laws or to prepare for potential new legislation, there are several steps that a business can take, including:
- Reviewing workplace grooming or appearance standards and making changes where needed
- Applying grooming policies and standards in a uniform manner to avoid any disparate impact on a particular group
- Addressing accommodation practices to account for appearance standards based on religious beliefs
- Training employees about any new requirements or changes in policy
- Training hiring personnel about what is prohibited under hair discrimination laws
As a general rule, businesses should regularly audit their policies and practices to ensure that they aren’t negatively impacting a protected class of individuals. Adaptive training to help prevent workplace harassment can be a valuable tool; True Office Learning offers training including content specific to harassment based on hair and hairstyles as part of racial discrimination. All organizations, regardless of their industry, size, or location, should embrace diversity and create an environment that is inclusive and fair through neutral, consistently enforced policies.