Most employers know that they cannot discriminate against employees based on race and other specified personal characteristics. But what are the physical traits sufficiently associated with race to qualify for protection under the law? The answer has not always been clear.
Over the summer, the California Legislature passed the Creating a Respectful and Open Workplace for Natural Hair (“CROWN”) Act, which extends the protections against racial discrimination in the workplace to natural hairstyles. In particular, the CROWN Act amends the Fair Employment and Housing Act (“FEHA”) to define “race” as “inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” Protective hairstyles include braids, locks, twists and other unspecified hairstyles associated with race.
With the passage of the CROWN Act, California became the first state in the nation to expressly include natural hairstyles in its anti-discrimination law. The preamble of the CROWN Act explains that “[t]he history of our nation is riddled with laws and societal norms that equated ‘blackness,’ and the associated physical traits … to a badge of inferiority, sometimes subject to separate and unequal treatment.” The common understanding of “professionalism” remains closely “linked to European features and mannerisms.” “Workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks, have a disparate impact on Black individuals as these policies are more likely to deter Black applicants and burden or punish Black employees than any other group.” The California Legislature recognizes that “hair today remains a proxy for race” and therefore “hair discrimination targeting hairstyles associated with race is racial discrimination.”
The new law that goes into effect on January 1, 2020 clearly ties natural hair with race under the state anti-discrimination law. With the increased scrutiny on more subtle forms of discrimination in the workplace, employers will need to be more proactive in detecting and preventing bias against natural hairstyles and other physical traits associated with race.
Employers with locations outside of California should be aware that California is not alone in prohibiting natural hair discrimination in the workplace and may have signaled a national trend. New York closely followed by amending its human rights law to similarly define “race” as including “traits historically associated with race, including but not limited to hair texture and protective hairstyles.” New Jersey and Michigan have also introduced bills to ban workplace discrimination based on natural hairstyles and other states may soon follow. Multi-state employers are well advised to be watchful for legislative developments of this trend in the states where they operate in order to ensure their dress code and grooming policies are in compliance.
What Should Employers Do Now?
As a result of the CROWN Act, California employers can anticipate increased scrutiny of their policies and practices regulating hairstyles and other potential proxies for racial discrimination. Employers may best prepare themselves by taking these steps:
- Review and amend grooming and appearance policies to eliminate prohibitions or discouragement of natural hairstyles and any other proxies for race.
- Train managers and human resources personnel about the expansion of the anti-discrimination law and about nondiscriminatory concepts of “professionalism” in the workplace.
- Engage in efforts to support a racially inclusive workplace environment, including for employees who desire to wear a protected hairstyle, and consider forming a diversity committee to take the lead in such efforts.