Protecting the CROWN: Preparing to Comply With an Increase in Legislation Prohibiting Hairstyle Discrimination

Continuing to gather momentum, as of October 2022, CROWN Act legislation has been passed in 18 states since its inception in 2019. The CROWN Act, an acronym that stands for “Creating a Respectful and Open World for Natural Hair,” prohibits discrimination based on hair textures or hairstyles commonly associated with a particular race or national origin, which expressly include, but are not limited to, hairstyles in which hair is tightly coiled or tightly curled, locs, cornrows, twists, braids, Bantu knots, and Afros. CROWN Act legislation expressly recognizes hairstyle discrimination as race-based discrimination. In the employment context, the CROWN Act makes it unlawful for any employer to take any adverse employment action against an employee or candidate because of the individual's hair texture or hairstyle.

Galvanized by highly publicized incidents where athletes were banned from participating in sports unless they covered or cut their locs and the story of an Alabama woman whose job offer was rescinded after she refused to cut off her locs, in 2019, Dove and a coalition of organizations collaborated with a then-California state senator to create the CROWN Act. The Act addresses race-based hairstyle discrimination in both the workplace and public schools. Studies conducted by Dove and the CROWN coalition found that black women felt that they were disproportionately impacted by workplace grooming and appearance policies and judged more harshly on their presentation than other women.

Since 2019, 18 states have passed CROWN Act laws: California, Colorado, Connecticut, Delaware, Illinois, Louisiana, Maine, Maryland, Massachusetts, Nebraska, Nevada, New Jersey, New Mexico, New York, Oregon, Tennessee, Virginia, and Washington. While Pennsylvania has not yet passed similar legislation, several localities, including Philadelphia, York, Pittsburgh and Allegheny County have enacted their own versions of CROWN ACT ordinances. Similar ordinances have been enacted by municipalities in Arizona, Georgia, Florida, Kentucky, Louisiana, Maryland, Michigan, Missouri, North Carolina, Ohio, Texas, West Virginia, Wisconsin, and the U.S. Virgin Islands.

At the federal level, CROWN Act legislation is pending approval in the U.S. Senate. The House of Representatives passed the legislation on March 18, 2022; and President Biden has been clear about his intention to sign the Act into law if passed in the Senate. The Administration has stated that “President Biden believes that no person should be denied the ability to obtain a job, succeed in school or the workplace, secure housing, or other otherwise exercise their rights based on a hair texture or hairstyle.”

While courts have not yet been presented with claims of CROWN Act violations, hairstyle discrimination has previously been the subject of lawsuits in federal courts. In EEOC v. Catastrophe Mgmt. Solutions, the Eleventh Circuit Court of Appeals denied the rehearing en banc of a race discrimination case brought by the Equal Employment Opportunity Commission involving an employee’s locs. 852 F.3d 1018, 1030 (11th Cir. 2016). In Catastrophe Mgmt. Solutions, the employer rescinded a job offer after the candidate – a Black woman – refused to cut off her locs. The company’s human resources manager later told the woman that her hairstyle violated the company’s grooming policy because locs “tend to get messy.” The Eleventh Circuit held that discrimination on the basis of black hair texture (an immutable characteristic) was prohibited by Title VII, while adverse action on the basis of black hairstyle (a mutable characteristic) was not. The U.S. Supreme Court declined to hear the case in 2018. In the interim, CROWN Act laws have widened the scope of prohibited restrictions on employee appearance and grooming policies by including both mutable (hairstyles) and immutable (hair texture) characteristics.

Accordingly, at this time employers should take the following steps to ensure compliance with CROWN ACT legislation:

1. Closely review any restrictions on hairstyles for employees and make necessary accommodations to grooming policies that require use of hair coverings.
2. Review their current employee appearance and/or grooming policies and revise as appropriate to ensure compliance with applicable CROWN Act legislation. On this point, employers should be particularly mindful of the use of terms such as “messy,” “unkept,” “normal,” “traditional” or “socially acceptable.”
   • If there is a governing CROWN Act ordinance or state law, remove from employee grooming and/or appearance policies bans, restrictions, and prohibitions of those hairstyles expressly protected by the CROWN Act.
   • Employers can implement grooming requirements specific to a position or a business necessity, such as requiring employees to keep hair away from their face or pulled back when performing safety-sensitive work or when working around food, but employers should make certain these requirements are consistently enforced among all employees.
3. If there is no governing CROWN Act ordinance or state law, consider removing from employee grooming and/or appearance policies any bans or restrictions of hairstyles commonly associated with a particular race or national origin to avoid any disparate impact on employees of a protected class.
4. Refrain from selectively enforcing employee grooming and/or appearance policies, ensuring that the policies apply equally to all employees regardless of race.
5. Train managers on any policy changes and how to address grooming and/or appearance policy violations.

Buchanan’s labor and employment attorneys are actively monitoring the progress of the federal CROWN Act legislation sitting before the Senate. If the legislation is signed into law, we stand ready to assist employers review their policies to ensure compliance.