[co-author: Jade Allender]
With the start of the new year, California’s new law prohibiting hair discrimination has taken effect. Although California was the first state to prohibit discrimination on the basis of hair, similar legislation is appearing across the United States. New York and New Jersey have since joined California to prohibit hair discrimination, with New York City and Montgomery County, Maryland as the first to pass such laws at the local level. Similar legislation is currently pending in several other jurisdictions.
Background
Title VII of the Civil Rights Act of 1964 (“Title VII”) has always prohibited discrimination based on race. Courts assessing racial discrimination claims based on a claimant’s physical appearance have historically distinguished between whether the physical traits are “immutable” or “artificial.” Courts found that disparate treatment based on immutable characteristics could give rise to a valid claim of racial discrimination, whereas treatment based on artificial traits could not. Applying this standard, it was not uncommon for courts, e.g., to hold in favor of employers that rejected applicants with dreadlocks because their hairstyle was deemed to be an artificial trait. This distinction drew heavy criticism, particularly when concerning racial discrimination claims where African Americans were being disproportionately impacted because of their hairstyles.
California
California’s new hair discrimination law, also known as the “CROWN” Act, was passed to expand the protections afforded by Title VII. The Act was sponsored by the CROWN (Creating a Respectful and Open World for Natural Hair) Coalition, a national alliance of organizations working to address discrimination based on hair and appearance. California’s legislature unanimously passed the CROWN Act based on statistical findings that employers’ dress codes and grooming policies prohibiting “natural hair, including Afros, braids, twists and locks, have a disparate impact on Black individuals” and were “more likely to deter Black applicants and burden or punish Black employees.”
California’s CROWN Act amends the California Fair Employment & Housing Act, in part, by expanding the definition of “race” to include hair texture and protective hairstyles, such as braids, locks, and twists. The new law applies to employers with five or more employees. It took effect on January 1, 2020.
New York City
Although California was the first state to prohibit hair discrimination, this new protection was first adopted at the local level in New York City. In February 2019, the New York City Commission on Human Rights issued new enforcement guidance to the City’s Human Rights Law, the section of the administrative code that prohibits discrimination in housing, public accommodation, and employment. This guidance was the first to legislatively expand the definition of race discrimination to include discrimination on the basis of natural hair, hairstyles, and ethnicity.
New York City’s Human Rights Law generally applies to employers with four or more employees and provides for up to $250,000 in penalties; injunctive relief, including job reinstatement and policy changes; and other uncapped damages.
New York State
Closely mirroring New York City and California’s laws, the state of New York became the second state to prohibit hair discrimination. On July 12, 2019, New York Governor Andrew Cuomo signed into law an amendment to the New York Human Rights Law, which expanded the definition of “race” to include traits historically associated with race, such as “hair texture and protective hairstyles, including braids, locks, and twists.” The New York law took effect immediately and is applicable to employers with four or more employees.
New Jersey
New Jersey became the third state to pass a hair discrimination ban when Governor Phil Murphy signed Senate Bill 3945 into law on December 19, 2019. Similar to California and New York’s laws, the New Jersey act expands the definition of “race” under the New Jersey Law Against Discrimination. The bill was proposed after a video went viral of a Black high school wrestler who was forced to cut off his dreadlocks ringside or forfeit his wrestling match. The New Jersey law took effect immediately.
Montgomery County, Maryland
As the movement continues to garner support, Montgomery County became the first county to ban discrimination based on hairstyles, including braids, locks, Afros, curls, and twists. In Montgomery County, Maryland, the bill passed unanimously. Montgomery County’s Office of Human Rights will be responsible for enforcing the new law with substantiated violations costing employers a possible fine of up to $5,000.
Proposed Legislation
Proposed hair discrimination legislation is currently being considered in a handful of other states, including in Florida, Kentucky, Michigan, Tennessee, and Wisconsin.
Employer Takeaways
As laws prohibiting hair discrimination continue to pass, employers generally may want to consider modifying their policies as follows:
- Policies that ban, limit, or otherwise restrict hairstyles associated with race may place the company at risk.
- Consider adopting race-neutral grooming policies that require workers to keep their hair clean or secured for hygienic and safety reasons.
- Even facially neutral grooming policies could subject employers to risk if applied in a discriminatory manner that disproportionately impacts a protected group.
- Employers in California, New York, New Jersey, and Montgomery County, Maryland should be mindful of allowing natural hair and protective hairstyles in the workplace.
- Employers covered by hair discrimination laws, e.g., should consider not screening out applicants with braids, twists or locks based on not meeting the “image” the company is trying to project; or require employees’ hair texture and hairstyle to conform with employer expectations.
- Cal. S.B. 188 (2019)
- New York City Commission on Human Rights Legal Enforcement Guidance, NYC Human Rights (Feb. 2019), https://www1.nyc.gov/site/cchr/law/hair-discrimination-legal-guidance.page
- S.B. 6209, 2019-20 Leg. Sess. (N.Y. 2019).
