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“Hair Love” Coming to a Jurisdiction Near You

With the Oscar win for best animated short film, Hair Love shone a spotlight on California’s CROWN Act (Create a Respectful and Open World for Natural Hair), which prohibits discrimination based on natural hairstyles and textures. Bills addressing hairstyle discrimination are now pending in 21 statehouses around the country, with several municipalities considering their own legislation. With companion bills already pending in the U.S. Senate and House of Representatives, a version of the CROWN Act is likely to become law in a jurisdiction near you soon.

February’s Black History Month has seen four more states (Colorado, Washington, Oregon and Minnesota) advance legislation prohibiting hair discrimination in the workplace. On February 21, 2020, Virginia voted to pass a version of the CROWN Act, joining California, New York and New Jersey where it is already signed into law.

Although the legislation varies slightly from jurisdiction to jurisdiction, in general these laws expand the definition of “race” in existing anti-discrimination legislation to include “traits historically associated with race,” including but not limited to “hair texture and protective hairstyles,” with “protective hairstyles” including styles such as braids, locks and twists. Notably, these definitions are not exhaustive and may include other presentations of “traits historically associated with race.”

In some respects, laws like the CROWN Act merely codify prior court decisions, as, for example, courts have long recognized that an employer’s hostility to afros can be a basis for a discrimination claim under Title VII of the Civil Rights Act of 1964. See, e.g., Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164 (7th Cir. 1976) (en banc). It is thus possible that, even in states without a formal hairstyle discrimination law, courts may become more receptive to the idea that hair texture and style-based bias is a form of racial discrimination prohibited under Title VII.

California’s CROWN Act effectively adopts this analysis, as in passing the law the California legislature specifically found that hair remains a “proxy for race” and that, therefore, discrimination based on hairstyles associated with race is a form of racial discrimination. The legislature relied, in part, of a research survey of 2,000 (1,000 Black and 1,000 non-Black) women aged 25−64 that found that Black women were more likely to receive a formal workplace grooming policy during the application and interview process, as well as during orientation. The survey also showed that Black women were 1.5 times more likely to be sent home because of their hair.

What should employers do?

  • Review and amend grooming and dress code policies to ensure that they are neutral and do not include prohibitions that may disparately impact traits associated with race, including natural and protective hairstyles.

  • Train employees involved in hiring, promotion and/or discipline on the importance of equal application and enforcement of grooming and dress code polices. Because these policies are usually on their face neutral, problems typically arise in enforcement.

  • Monitor legislative developments (state, county and municipal) in all locations in which they operate and review and update their policies and practices accordingly.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 58

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About this Author

E. Meaghan Clayton Labor & employment Litigation Attorney Feagre Drinker Law Firm Minneapolis
Associate

Meaghan Clayton defends employers in both state and federal court litigation. She also advises clients on employment best practices by reviewing and drafting agreements and policies.

Meaghan is particularly interested in helping employers navigate the rapidly changing restrictions on noncompetition agreements and worker classification, as well as the increased localization of anti-discrimination and anti-harassment statutes.

Employment Litigation

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