A bill making its way through Congress would prohibit discrimination based on hair texture or styles commonly associated with race or national origin, especially for those of African descent, and there's a good chance it will pass, according to one attorney.
In the workplace and in academia, "only black people and multiracial people of African descent are punished when they choose to wear styles consistent with their natural hair texture," opined Ría Tabacco Mar, Director of the ACLU Women's Rights Project — and when they don't.
In Santee v. Windsor Court Hotel, Andrea Santee, an interviewee with hair dyed blonde, allegedly was informed by a prospective employer of its grooming policy prohibiting "extremes in hair color," and denied the job when she refused to change her hair color at the request of the prospective employer. In Burchette v. Abercrombie & Fitch, a supervisor allegedly told Dulazia Burchette that "she should have the hair color that she was born with," and that her hair violated the company's "look" policy. Similarly, in Bryant v. BEGIN Manage Program, Shirley Bryant said she was denigrated for her dyed blonde hair. In Pitts v. Wild Adventures, Inc., the employer reportedly suggested that Patricia Pitts wear her hair in a 'pretty style.' In Rogers v. American Airlines, the employer's grooming policy prohibited Renee Rogers' "all-braided hairstyle."
In these and many similar cases, courts have concluded that employers' grooming policies did not discriminate against Black people on the basis of race.
The CROWN Act
California's CROWN Act became law in July 2019. The law expanded the definition of 'race' to include hair texture and hairstyles "closely associated with race." The movement spread, prompting other states, including New York (where Rogers was heard), to ban race-based hair discrimination. These were the first laws, worldwide, to acknowledge racial discrimination packaged in policies with negative impacts specific to persons of African descent. As positions have shifted in holdout states, legislative updates have been reflected on this map.
On March 18, the U.S. House of Representatives passed the Creating a Respectful and Open World for Natural Hair Act of 2022, finding "it is necessary to … explicitly prohibit the adoption or implementation of grooming requirements that disproportionately impact people of African descent [who] systematically suffer harmful discrimination in schools, workplaces, and other contexts based upon longstanding race and national origin stereotypes and biases."
The CROWN Act prohibits "discrimination based on a person's hair texture or hairstyle if that style or texture is commonly associated with a particular race or national origin (including a hairstyle in which hair is tightly coiled or tightly curled, locs, cornrows, twists, braids, Bantu knots, and Afros)."
Because historically Black hair has been categorized by non-Black people as a choice, an expression or style, it has received no protection under Title VII of the Civil Rights Act, explained Chantell Foley, associate counsel at Fisher Phillips. Results of an implicit association test conducted on both Black and White women in 2016 found that "a majority of people, regardless of race and gender, hold some bias towards women of color based on their hair." Just as race and national origin are immutable characteristics protected under Title VII, Foley said she believes hair texture should be, too.
Some, employers included, have taken the position that since Black hair can be chemically straightened and colored, it's not immutable. All of this requires a degree of patience, Foley told HR Dive, with "people who are actually trying to understand the differences [between] race and culture." Whether or not chemicals are involved, Black hair reverts to its natural state and texture. In fact, she said, hair that would require a chemical to change its natural condition proves its immutability.
"It's important to see that Congress is saying they believe this has always been an issue of discrimination. The courts need to actually take a new view of this and incorporate hairstyle and hair texture into race and national origin, and apply it that way." Foley, who is a Black woman, practices in areas of employment discrimination and harassment, among others.
Based on the language in the bill, and similar laws already implemented, "there's a good chance that our Congress will pass the CROWN Act," said Foley. "The law is trying to get courts to say that [Black hair constitutes] a race-based protected group, whereas right now, it [doesn't]."
Moving forward, expansion of that protection to include hair texture will finally establish that hair-type discrimination is "actually [race-based discrimination]," she said, "because African Americans are typically the persons being affected."
Advice to employers
Considering the growing position that hair type should be a category protected by Title VII, Foley offered advice to employers and HR pros: "They need to start looking at their policies and re-wording them. [Where policies mention] anything about hairstyle, I think that should be taken out, because if we're talking about natural [hair, which] I think is immutable, and that Congress is saying is immutable, then [employers] could find themselves in litigation for discriminating against this person."
She assured employers the CROWN Act does not change the ability to create dress codes and grooming policies, nor does it bar termination for an issue of performance. Employers can have appearance policies, she said, "just not discriminatory appearance policies."
Foley also offered a word of caution about application of workplace policies. "I can see some employers [saying], 'Well, our policy says that no one should have dreadlocks, including Blacks, Whites, women or men,' and that seems facially neutral, however, if an employee can show that the disparate amount of employees that are affected by that policy are African American, then [in spite of that global policy] that employer could be violating Title VII."
HR also may want to consider whether a job seeker could face discrimination on the basis of hair type during a video interview, Foley said. "If you really are that proactive company that wants to make sure you're not discriminating, then just have a telephonic interview, without a face-to-face — just a call that says 'Let me see if you're qualified.'"
There's still going to be an issue until this legislation is passed, said Foley. Lawyers will continue to argue that hair-type discrimination is not based on race, she continued, and success in discrimination claims will continue to be rare without the smoking gun; but she predicted, in the future, the CROWN Act could mean the end of a long argument about whether or not Black hair constitutes a protected class.
The bill is now under consideration in the Senate.