The subject of many songs, skits, and social movements, hair discrimination has become a burning issue across the country. From Sesame Street to India Arie, there have been calls to eradicate the social stigma surrounding natural hair for decades. But now, with recent legislation, politicians are starting to follow these trends. They are going from quietly ignoring anti-natural hair practices to staunchly standing against them.
Especially for Black/African American and Latinx communities, this conversation is long overdue. A 2017 NPR story as part of the Code Switch project confirmed that black women experience more anxiety around hair issues and spend more on hair care than their white peers, and are twice as likely to experience social pressure to straighten their hair compared to white women.
In 2016, an 11th Circuit court held in EEOC v. Catastrophe Management Solutions that Title VII did not protect against hair-based discrimination. There, Chastity Jones was offered a job with Catastrophe Management Solutions on the condition that she cut off her locs. When she refused to change her hair, her job offer was rescinded. The 11th Circuit upheld the lower court’s decision that the conditional job offer based on Jones’s hairstyle was not a form of racial discrimination protected by Title VII.
Now, just three years later, states nationwide are passing laws that ban this very practice. Largely referred to as the CROWN Act (Creating a Respectful and Open World for Natural Hair), these bills recognize the detrimental effects of workplace dress codes and grooming policies prohibiting natural hair. Particularly, the CROWN Act affirms that “hair remains a rampant source of racial discrimination with serious economic and health consequences, especially for Black individuals.” And it notes that natural hair can be presented in more ways than just an afro – braids, twists, and dreadlocks are explicitly included.
So far, a handful of states and cities have stepped up to the plate by passing the CROWN Act (or something similar) to prohibit workplace practices based on hair. In February, the New York City Commission on Human Rights issued guidelines for the country’s first-ever ban on hair discrimination. Those guidelines make clear that “Black hairstyles are protected racial characteristics under the [New York City Human Rights Law] because they are an inherent part of Black identity” and that “[c]overed employers are engaging in unlawful race discrimination when they target natural hair or hairstyles associated with Black people, and/or harass Black employees based on their hair.”
And over the summer, California and New York became the first states to enact laws that banned this type of discrimination. Since then, Illinois, Kentucky, Michigan, and New Jersey have followed suit in proposing similar legislation. On a smaller scale, Cincinnati passed a law outlawing natural hair discrimination and Montgomery County, Maryland has put forth its own proposal, which is expected to pass. Moreover, the Boston City Council recently enacted a resolution supporting a statewide ban on discrimination against natural hairstyles.
So, what about the rest of America?
Local pushes against hair discrimination in Cincinnati, Boston and Montgomery County might be indicative, despite a lack of action on a higher, statewide or federal level. Socially, more celebrities, businesses, and organizations are adding their voices in support of these laws nationwide.
And keep in mind, these efforts have cropped up within the past few months with California starting things off in July, followed closely by New York. Given the timeline so far, it isn’t a stretch to predict that more states and cities will suggest similar laws, and soon.
Change is on the horizon.
Regardless of whether (or rather—when) other states join the fight, employers should expect changes to the legal landscape. With big bellwether states like California and New York taking a stance against these practices, and the U.S. Army authorizing forms of natural hair for women in uniform, the ripple effect is inevitable whether it be in the form of social pressure or proposed legislation.
At the very least, employers should expect an uptick in litigation on this issue no matter where they are located. With laws attributing hair style and texture to racial discrimination, courts will have to reinterpret what type of conduct and policies are tolerated under anti-discrimination laws. To stay ahead of the curve, employers should look at their dress code and hiring policies and see if they pass muster. This includes such things as:
- Not outlawing or “frowning upon” certain hair styles (such as dreadlocks), or expecting individuals to conform to gender norms in how they style their hair;
- Consider how other policies can adversely impact individuals with certain hair styles (i.e., such as how hair follicle hair testing could disproportionately affect the Sikh community);
- Watch out for implicit bias in hiring and promotion, where people of color with natural hair have often been considered less “professional” by organizations; and
- Train line managers to think before they act when it comes to employee hair, and go to HR sooner rather than later when they have a question.
When in doubt, just remember the simple rule that everyone should love their hair, and really, who wants to stand in the way of love?