“R-E-S-P-E-C-T. Find out what it means to me.” More than half a century after Aretha Franklin first sang those lyrics, state legislatures, local municipalities, and Congress are passing the Creating a Respectful and Open Workplace for Natural Hair legislation (“CROWN Act”). Before the flurry of legislation aimed at protecting natural hair, some appellate courts already applied the protections of Title VII liberally. In Jenkins v. Blue Cross Mut. Hosp. Ins., the 7th Circuit held a plaintiff’s EEOC charge sufficiently alleged race discrimination where plaintiff’s EEOC charge stated plaintiff’s boss denied plaintiff a promotion because plaintiff “could never represent [defendant] with [an] Afro.” 538 F.2d 164, 168 (7th Cir. 1976). Other courts, however, took a narrower approach. In EEOC v. Catastrophe Mgmt. Solutions, the 11th Circuit reasoned “Title VII protects persons in covered categories with respect to their immutable characteristics, but not their cultural practice[,]” thereby upholding a race neutral grooming policy that prohibited dreadlocks. 852 F.3d 1018, 1028-34 (11th Cir. 2016). Indeed, as recently as 2018, the U.S. Armed Forces maintained grooming policies that prohibited natural or protective hairstyles commonly worn by Black servicemembers because the hairstyles were “unkempt.”
The CROWN Act
More than a dozen state legislatures already passed a variation of the CROWN Act and more than a half dozen states are considering a version of the CROWN Act. Federal legislation was introduced in Congress in December 2019 and re-introduced in March 2021. The CROWN Act passed in the House on March 18, 2022 and is now under consideration in the Senate. The federal version is broader in scope than some state legislation and is called Creating a Respectful and Open World for Natural Hair Act of 2022 (“CROWN Act of 2022”). The federal legislation’s stated purpose “is to institute definitions of race and national origin for Federal civil rights laws that effectuate the comprehensive scope of protection Congress intended to be afforded by such law and Congress’ objective to eliminate race and national origin discrimination in the United States.”
As the myriad of legal actions make clear, hair has served as a basis of race and national origin discrimination. The CROWN Act, in its various versions, expands the legal definition of race as a protected class to include traits historically associated with race, including hair texture and style. The law prohibits workplace dress code and hygiene policies that may show racial bias in requiring employees to appear professional by prohibiting afros, braids, twists, cornrows, locs, and other hairstyles or natural hair types historically associated with race. It also makes it unlawful for an employer to fail to hire, refuse to hire, discharge any individual, or otherwise discriminate against an individual’s terms of employment based on their hair texture or hairstyle where the hair texture or hair style is commonly associated with a particular race or national origin.
Although the federal version of the CROWN Act is not yet law, employers should check and see if their state or local municipality has enacted a version of the CROWN Act or if their federal circuit applies the protections of Title VII to characteristics such as hair texture and hair style. In February 2021, the U.S. Army removed minimum hair length requirements and lifted restrictions on any solider wearing braids, twists, locs, and cornrows to promote inclusivity. Similarly, employers may consider reviewing their company dress, grooming, and hygiene policies to ensure they do not run afoul of the CROWN Act. Surveys have found that Black women are made to be more aware of corporate grooming policies, such that Black women receive the company grooming policy at higher rates and Black women are 1.5x more likely to be sent home from the workplace because of their hair. Employers would also be well advised to ensure that all employees are treated equally regardless of race or characteristics associated with race such as hair texture and hairstyle.