CROWN Acts Prohibit Discrimination Based on Natural Hairstyles

Foley & Lardner LLP

Foley & Lardner LLPThe CROWN (“Create a Respectful and Open World for Natural Hair”) movement seeks to create a world free of discrimination, harassment and retaliation based on natural hairstyles normally associated with race; this includes braids, locks, twists, tight curls, cornrows, Afros, or head wraps. Some states, like California, have already passed a CROWN Act banning discrimination based on natural hairstyles and textures. The CROWN movement recently celebrated National CROWN Day on July 3, 2020, as it marks the anniversary of California’s passage of the first CROWN Act. Federal legislation is currently in committee and seeks to prohibit the same type of discrimination that California pronounced in July of 2019. Employers should consider reviewing their workplace handbooks and policies as the CROWN Acts define a new form of race discrimination that may create liability exposure. 

The Equal Employment Opportunity Commission (EEOC) issued guidance on this issue in 2006 by stating that for purposes of anti-discrimination law, race is not limited to skin color, but also includes physical and cultural characteristics based on race. Federal courts, however, are not bound by the EEOC guidance, and thus some have ruled that Title VII does not prohibit discrimination on the basis of hairstyles. The CROWN Act movement seeks to fill this gap by specifically including hairstyles and texture as a part of race in anti-discrimination statutes.

 The federal CROWN Act (labeled the CROWN Act of 2019) was introduced in the House of Representatives in December 2019 and is currently in the Subcommittee on the Constitution, Civil Rights, and Civil Liberties. The bill seeks to prohibit discrimination based on an individual’s texture or style of hair and includes specific examples of protected hairstyles.  The act’s purpose is to include hairstyles typically associated with race as a type of discrimination, therefore preventing employers and educational systems from discriminating through their policies.

California’s CROWN Act (SB 188) passed on July 3, 2019, commemorating the movement’s official National CROWN Day. The legislation amended the California Fair Employment and Housing Act definition of race to include “hair texture and protective hairstyles” normally associated with race. The legislation goes on to include a nonexhaustive list of protective hairstyles, such as braids, locks or twists. The legislation targets workplace dress and grooming policies that may have a disparate impact on African American applicants or employees.

Colorado and Washington passed CROWN Acts in February and March 2020. Other states that have passed CROWN Acts include New York, New Jersey, and Virginia (passed July 1, 2020), with CROWN Act legislation pending in Georgia, Illinois, Massachusetts, Michigan, Minnesota, Ohio, South Carolina, Tennessee, and West Virginia. Further, many local governments, such as Montgomery County, Maryland, have passed CROWN Acts banning discrimination based on protective hairstyles. On the other hand, some states, like Florida, Kansas, and Wisconsin, have introduced CROWN legislation, but such legislation has been indefinitely withdrawn from consideration or has died in committee.

The implications of the state and federal acts that seek to protect natural hairstyles commonly associated with race call for employers to review and possibly amend their employee handbook’s dress code and grooming policies. Many of these state laws require that workplace policies be written to avoid a disparate impact on applicants and/or employees based on their race. Employers should take notice of their state’s CROWN Act and consider amending their policies to avoid potential exposure to discrimination litigation.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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