In Sunday’s Oscars acceptance speech for the animated short film “Hair Love,” in which an African-American father learns to do his daughter’s hair for the first time, former NFL player and director Matthew A. Cherry remarked that he was motivated by a desire to normalize black hair and urged viewers to help support the passage of the CROWN Act in all 50 states.
The CROWN Act he was referring to is an acronym for “Creating a Respectful and Open Workplace for Natural Hair” Act and pertains to legislation that prohibits discrimination based on natural hairstyles. California was the first state to pass its version of the CROWN Act, which went into effect at the beginning of this year. New York and New Jersey have enacted their own versions and many other states and local jurisdictions are considering or have passed similar legislation. Accordingly, as awareness of these new laws heighten, business owners in California and beyond should act now to ensure their policies and practices comply with the CROWN Act.
Understanding the CROWN Act
Recognizing that “hair today remains a proxy for race,” the California Legislature concluded that “hair discrimination targeting hairstyles associated with race is racial discrimination.” Prior to the enactment of the CROWN Act, natural hairstyles were not a legally protected characteristic in California. Thus, an employee who wanted to challenge an employer’s grooming policy or practice as discriminatory had to rely on federal law. However, federal courts have consistently held that employers may prohibit natural hairstyles so long as the same policy applies to all employees. With the enactment of the CROWN Act, employers in California can no longer safely rely on a defense that a particular policy or practice is applied uniformly with regard to employees’ hairstyles.
In California, the CROWN Act ensures protection against discrimination based on hairstyles by extending statutory protection to hair texture and protective hairstyles in California’s Fair Employment and Housing Act (FEHA) and Education Code. In particular, the CROWN Act amends the definition of race to include “traits historically associated with race, including hair texture and protective hairstyles.” By definition, protective hairstyles includes, but is not limited to, “braids, locks, and twists.” Notably, this list of protective hairstyles is not exhaustive and the new law extends protection to any hairstyle associated with a particular race.
California’s CROWN Act leaves intact the FEHA exception authorizing policies and practices that are based on bona fide occupational qualifications, such as health or safety hazards. However, there are no published California opinions regarding this defense in the context of a race discrimination claim and litigation is anticipated on this issue.
What Should Employers Do Now?
As the CROWN Act’s visibility increases and policies and practices are scrutinized, California employers should take the following actions now:
- Review and amend grooming and appearance policies to eliminate prohibitions against natural and protective hairstyles or other proxies for race;
- Assess with legal counsel whether any policies and practices are based on bona fide occupational qualifications;
- Train employees involved in hiring, promotion, and/or discipline about compliance with the CROWN Act;
- Revisit job descriptions and job postings for compliance with the CROWN Act; and
- Monitor legislative developments in all jurisdictions in which they operate and review and update their policies and practices accordingly.
Following the CROWN Act’s implementation on January 1st, employers should consult with legal counsel now to ensure compliance. Additionally, to further the CROWN Act’s purpose of creating workplaces of opportunity for all, employers should engage in efforts to support a racially-inclusive workplace environment, for instance, by finding meaningful ways to celebrate Black History Month with employees this February.