Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On March 18, 2022, the U.S. House of Representatives passed the Creating a Respectful and Open World for Natural Hair (CROWN) Act. The CROWN Act 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.
While the Biden administration supports the bill, the CROWN Act faces an uphill climb in the current Senate. The House voted mostly along party lines with only 14 Republicans voting in favor of the bill. At least 10 Senate Republicans would need to vote for the CROWN Act to avoid a filibuster and ensure its passage.
But regardless of the fate of the federal legislation, since California became the first state to pass a CROWN Act in 2019, multiple states and localities have followed suit.1 Employers doing business in states with operative CROWN laws—and employers everywhere seeking to create a more inclusive and welcoming environment for all their employees—should both 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 that are closely associated with their racial, ethnic, or cultural identities.2 In this guidance, the NYCCHR explains that negative sentiments towards Black hairstyles and textures date back to times of slavery. For example, “white slave traders initially described African hair and locs3 as ‘dreadful,’ which led to the commonly-used term ‘dreadlocks.’”4 The NYCCHR provided examples of how, over time, such sentiments crept into many modern workplace settings5 and shaped the parameters of dress and grooming policies,6 as well as other general employment practices.7 The NYCCHR emphasized that these policies can be preferential towards white and European beauty standards and require Black individuals with certain hairstyles and textures to uncomfortably8 conform with those standards for the sake of their employment.
California lawmakers echoed the NYCCHR on this issue when on July 3, 2019, California became the first state to enact a CROWN Act.9 This legislation expanded the definition of “race” under its state anti-discrimination law to include both hair texture and protective hairstyles10 that are closely associated with race. More specifically, the California CROWN Act bars dress and grooming policies that prohibit natural hair, including Afros, braids, twists, and locs, because these policies have a disparate impact on Black applicants and employees. The California Legislature explained that U.S. laws and social norms have historically associated “blackness” with “unprofessionalism,” be that explicitly or implicitly. Legislators emphasized that in workplace settings, “professionalism” can become a guise for European features and mannerisms, and grooming standards can serve as a deceptive barrier to employment opportunities for Black individuals who do not fit that mold.
Black women can be particularly impacted by certain dress codes and grooming policies. Indeed, one recent study11 found that Black women are 80% more likely to change their natural hair to meet social norms or expectations at work, and Black women are 1.5 times more likely to be sent home or know of a Black woman sent home from the workplace because of her hair. Overall, the study found that Black women fear scrutiny and discrimination when expressing their natural hair in the workplace.
Several recent cases have been brought under both the CROWN Act and Title VII, with applicants and employees alleging discrimination based on their hair texture or hairstyles.12
The CROWN Act at the Federal Level
It is against this backdrop that U.S. Rep. Bonnie Watson Coleman (D-NJ) introduced the CROWN Act in the U.S. House on March 19, 2021.13 The purpose of the CROWN Act is to protect people of Black or African descent from routine—though often covert—barriers to employment opportunities14 based on “longstanding racial and national origin biases and stereotypes associated with hair texture and style.”15
Thus, the CROWN Act, as passed by the House, expressly 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).”16 If enacted, the federal CROWN Act would be treated as if it were incorporated in Title VII of the Civil Rights Act of 1964 for enforcement purposes.
Although the U.S. House passed the CROWN Act last month, it is unclear whether the Senate will do the same.17 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.
The CROWN Act at the State and Local Level
While the federal CROWN Act has inched its way across the congressional floor, states and localities across the country have swiftly enacted legislation banning race or national origin discrimination on the basis of hairstyle and texture.
With California leading the charge, Colorado, Connecticut, Delaware, Maine, Maryland, Nebraska, Nevada, New Jersey, New Mexico, New York, Oregon, Virginia, Washington, and the U.S. Virgin Islands have recently passed state/territory-level hair discrimination laws. The Illinois, Massachusetts, and Tennessee legislatures have also passed hair discrimination bills, which 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 D.C., 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 hairstyle and texture.
Dress codes and grooming standards will likely remain common fixtures in the workplace.18 But evolving these policies can help employers not just with legal compliance, but also with making their workplaces more inclusive. The rise of state and local CROWN Acts provides organizations with an opportunity 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 next steps:
- Reviewing and updating 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 completely banning or restricting particular hairstyles. For instance, employers should avoid instituting policies:
- specifically prohibiting twists, locs, braids, cornrows, Afros, Bantu knots, or fades, which are styles commonly “associated with Black people.”
- requiring employees to alter the state of their hair to conform to the company’s appearance standards, including having to straighten or relax hair (i.e., through the use of chemicals or heat).
- banning hair that extends a certain number of inches from the scalp, thereby limiting Afros.
- 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.
- Implementing diversity or unconscious bias training and engaging in efforts to create and support a more inclusive workplace environment.
As lawmakers continue to zero in on bias and discrimination in workplace policies and practices, the movement toward embracing inclusion, equity, and diversity (IE&D) in the workplace also shows no signs of stopping. 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 IE&D efforts.
1 The CROWN Act is supported by a growing alliance of organizations, known as the CROWN Coalition, which plays a major role in campaigning for and advancing anti-discrimination legislation across the United States. The CROWN Coalition’s founding members are Dove, National Urban League, Color of Change, and Western Center of Law and Poverty, and its supporting members include a diverse array of organizations in the social justice, business, legal, and education sectors. The CROWN Coalition has further galvanized support from federal, state, and local legislators across the country.
2 New York City Commission on Human Rights, NYC Commission on Human Rights Legal Enforcement Guidance on Race Discrimination on the Basis of Hair (Feb. 2019). Note that this guidance does not reflect new legislation or establish a new protected class, but rather states the NYCCHR’s position on the issue based on past cases that have come before it.
3 Note that the term “locs” or “locks” is an alternative term for “dreadlocks” or “dreads.” See id. at 4, n. 22.
4 Id. at 4.
5 See, e.g., Millin v. McClier Corp., No. 02 Civ. 6592 (GEL), 2005 WL 351100, at *5 (S.D.N.Y. Feb.14, 2005) (determining that a reasonable factfinder could construe an employer’s negative comments regarding plaintiff's locs, leading up to plaintiff’s termination, as related to his race, religion, and/or national origin given that locs are “commonly associated with African-American, Rastafarian, and Jamaican culture”).
6 One example provided by the NYCCHR pertains to the U.S. Department of Defense, the nation’s largest employer, which enacted a general ban on Black hairstyles, including Afros, twists, cornrows, and braids. This policy was ultimately rolled back after Black service members expressed wide outrage. See Maya Rodan, U.S. Military Rolls Back Restrictions on Black Hairstyles, TIME (Aug. 13, 2014); Christopher Mele, Army Lifts Ban on Dreadlocks, and Black Servicewomen Rejoice, N.Y. TIMES (Feb. 10, 2017).
7 For example, requiring Black employees to hide or conceal their hair in a hat or visor, barring Black employees with locs from customer-facing roles, or restricting of natural hair or hairstyles under the guise of speculative health or safety concerns.
8 For example, the use of extreme heat and chemicals to alter or straighten hair can have negative health consequences. See supra note 2, at 31–32. Compliance with discriminatory dress codes and grooming policies can also affect confidence and self-esteem throughout one’s lifetime. See The CROWN Research Study for Girls, Dove USA (last visited Ap. 19, 2022).
9 S.B. 188, 2019 Leg., Reg. Sess. (Cal. 2019); Corinn Jackson, You Can’t Touch My Hair: California Bans Racial Discrimination Based on Hairstyle with CROWN Act, Littler ASAP (July 12, 2019).
10 The California CROWN Act defines protective hairstyles as those including braids, locs, and twists—though this is not an exhaustive list.
11 C.R.O.W.N. Research Study, Dove USA and Joy Collective (2019).
12 See, e.g., EEOC v. American Screening, LLC, No. 21-1978 (E.D. La. Oct. 27, 2021) (Black employee alleges she was unlawfully terminated by her employer for violating the company grooming policy when she stopped wearing a wig made of straight hair and instead began neatly wearing her natural hair); Thornton v. Encore Group USA LLC, No. 37-2021-00049996, (Cal. Super. Nov. 29, 2021) (Black applicant sued under the California CROWN Act, alleging that despite his qualifications for the job, his former employer refused to rehire him post-furlough because his locs had grown out and he could not conform to certain dress and appearance policies).
13 Creating a Respectful and Open World for Natural Hair Act of 2022, H.R. 2116, 117th Cong. (2022); Note that this is actually a reintroduction. In December 2019, in response to several high-profile incidents in which Black people were denied employment or participation in school activities or events due to their hair texture or hairstyles, U.S. Senator Cory Booker (D-NJ) introduced the first iteration of the CROWN Act at the federal level as Senate Bill 3167 in January 2020. Companion legislation was introduced in the U.S. House of Representatives by Rep. Cedric Richmond (D-LA), as well as Reps. Ayanna Pressley (D-MA), Marcia Fudge (D-OH), and Barbara Lee (D-CA), as House Resolution 5309. When neither bill gained traction on the Congressional floor during the 2019-2020 Session, it was re-introduced by U.S. Rep. Watson Coleman (D-NJ) for the 2021-2022 Session.
14 The CROWN Act also prohibits discrimination in federally assisted programs, housing programs, and public accommodations based on hairstyle or hair texture.
15 CROWN Act of 2022, H.R. 2116, 117th Cong. (2022).
17 See Lisa Nagele-Piazza, J.D., SHRM-SCP, House Approves Bill to Ban Hairstyle Discrimination in the Workplace, Society for Human Resource Management (Mar. 22, 2022) (quoting Corinn Jackson on the passage of the federal CROWN Act and its implications for employers).
18 Existing federal laws have long limited the ability of employers to enforce dress codes and grooming policies, thereby requiring employers to adjust to the unique needs of protected class members. 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.