For years, American employers have enforced employee dress and grooming standards, some of which include standards on hairstyles. In the past, the U.S. Equal Employment Opportunity Commission (EEOC) has indicated that “race” includes more than the color of an individual’s skin; it includes other physical and cultural characteristics associated with race, and more particularly, hair. However, guidance from the courts has not been quite so clear, and in some instances directly contradictory. Given that lack of clarity, there has been legislative movement to ensure such traits have clear protection under discrimination laws.
The Federal CROWN Act (H.R. 2116)
Just last month, the U.S. House of Representatives passed H.R. 2116, known as the CROWN Act, which stands for Creating a Respectful and Open World for Natural Hair Act. This bill, if fully enacted, would ban race-based hair discrimination in workplaces, federal programs, and places of public accommodation. The bill would enact policies first introduced and passed in California in 2019, and since adopted in Oregon, Washington, and several other states. To date, it has not received action in the U.S. Senate, where its fate is uncertain.
State CROWN Acts
While the federal government is debating the merits of the CROWN Act, 15 states have already passed some version of the CROWN Act, including the three West Coast states.
As of 2021, the discrimination statutes of California, Washington, and Oregon all explicitly define race to include traits historically associated with a particular race, including hair texture and “protective hairstyles.” While each state defines “protective hairstyles” a little differently, and have some other state-specific differences (see below), all West Coast employers should take note that their employees’ hairstyles may be protected under the discrimination statutes.
In 2019, California became the first state to ban race-based hair discrimination in work and school. Under the California Fair Employment and Housing Act (CA SB-188), “protective hairstyles” include, but are not limited to, braids, locks, and twists. California’s CROWN Act applies to public and private schools, private employers with five or more employees and public employers (but excludes religious and nonprofit organizations), and housing.
In 2020, Washington’s version of the CROWN Act went into effect, amending Washington State’s Law Against Discrimination (RCW 49.60). Washington defines “protective hairstyles” to include without limitation “afros, braids, locks, and twists.” RCW 49.60.040(21) .
Notably, the Washington CROWN Act is more expansive than its neighbors California and Oregon because it also includes traits perceived to be associated with race. Washington’s CROWN Act applies to all areas covered by RCW 49.60, including places of public accommodation, real estate transactions, housing, insurance, etc. The legislative history specifically noted that this change could have a particular impact on Native Americans and Samoans, cultures where it is an honor to have long hair.
Oregon passed its CROWN Act in 2021, amending Oregon’s anti-discrimination law, ORS 659A. Oregon defines “protective hairstyle” as “a hairstyle, hair color or manner of wearing hair that includes, but is not limited to, braids, regardless of whether the braids are created with extensions or styled with adornments, locs and twists.” The Oregon CROWN Act applies to Oregon employers, education institutions (including public schools, community colleges, and universities), entities engaged in selling, renting, or leasing property, and places of public accommodation. The Oregon CROWN Act also addresses dress codes, providing that a dress code must not “have a disproportionate adverse impact on members of a protected class to a greater extent than the policy impacts persons generally.”
Educational institutions looking for a helpful graphic on protective hairstyles can look to the Oregon Department of Education, which has created an optional poster to display information about the Oregon CROWN Act available here.
Action Steps for Employers
With these expanded definitions of “race,” this is a good time for employers to take some steps to ensure inclusivity in the workplace as well as compliance with the law, including:
- Review and update anti-discrimination and harassment policies. If your employee handbook does not mention protected hairstyles and traits historically associated with race in its EEO, anti-discrimination, harassment and other related policies, then now is a good time to update your handbook or have legal counsel review it.
- Dress code or grooming requirements should be reviewed and updated as needed. Be sure to consider whether any standard is truly necessary and nondiscriminatory in impact, and if not, now is a good time to adjust. See EEOC Compliance Manual.
- Provide training and education for all employees, including managers and supervisors. Employers should train all employees, including managers and supervisors, that characteristics associated with a particular race, such as hairstyles or textures, are protected under the employer’s policies. This point should be included in workplace training on legal compliance, manager/supervisor obligations, and diversity, equity, and inclusion training.
With the passage of the CROWN Act in California, Washington and Oregon, and given the trend of other states and municipalities following suit, the cautious employer must remain proactive in identifying and preventing discrimination based on race and traits associated with race, including hair texture and natural hairstyles.