Citing shortcomings in Federal anti-discrimination law, a growing number of state and local legislatures are enacting laws prohibiting discrimination in regards to hairstyle.

Historical Treatment of Hairstyle under Federal Law

Title VII of the Civil Rights Act of 1964 – the landmark Federal anti-discrimination law – has long prohibited discrimination on the basis of race, color, or national origin, amongst other protected characteristics.  However, Courts have generally rejected the argument that discrimination on the basis of hairstyle can amount to discrimination on the basis of race under Title VII, notwithstanding that hairstyle may be closely associated with a particular race or ethnic group.  For example, in 2016, the Eleventh Circuit Court of Appeals affirmed judgment in favor of an employer that applied a race neutral grooming policy to revoke an offer of employment to a Black applicant who insisted on wearing her hair in dreadlocks.  In that case, the Court observed that Title VII “protects persons in covered categories with respect to their immutable characteristics, but not their cultural practices.”  Thus, according to the Court, Title VII prohibits “discrimination on the basis of black hair texture,” such as an afro, but not “adverse action on the basis of black hairstyle (a mutable choice)[,]” such as dreadlocks.  

States Act to Prohibit Hairstyle Discrimination

On July 3, 2019, California became the first state to enact a hairstyle discrimination law with the passage of the Create a Respectful and Open Workplace for Natural Hair Act, or “CROWN Act.”  In the CROWN Act, the legislature observed that Title VII “prohibits discrimination based on race, and therefore protects against discrimination against afros[,]” but does not protect other “natural presentation[s] of Black hair[,]” including “braids, twists, and locks.”  To rectify what the legislature characterized as a misunderstanding that “afros are not the only natural presentation of Black hair[,]” the definition of “race” in California’s anti-discrimination law was amended to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles” such as “braids, locks, and twists.”  

Shortly after the enactment of California’s CROWN Act, New York Governor Andrew Cuomo approved an identical amendment to the definition of “race” in New York’s Human Rights Law.  Since then, legislatures have introduced variations of the CROWN Act in Kentucky, Michigan, New Jersey, Tennessee, and Wisconsin, as well as several major cities, including Boston, Cincinnati, and Orlando.  In addition, in November, Montgomery County, Maryland, became the first U.S. County to prohibit discrimination on the basis of “protective hairstyles,” defined to include “those hairstyles necessitated by, or resulting from, the immutable characteristics of a hair texture associated with race, such as braids, locks, afros, curls, and twists.”

The increasing number of hairstyle discrimination laws should serve as a reminder to employers that the characteristics protected from discrimination under state and local law are often more expansive than those protected under Federal law.  Employers operating in jurisdictions affected by this new wave of legislation should consult with counsel to revisit existing grooming and personal appearance policies and ensure that such policies are being enforced in accordance with state and local law.  

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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