Over the years, employees have filed complaints alleging their employers violated existing nondiscrimination laws by prohibiting them from wearing certain hairstyles. Courts have generally been split on whether restricting certain hairstyles violates laws prohibiting racial discrimination. In response to these cases, several jurisdictions have passed laws that expressly prohibit hairstyle discrimination. Below is a list of locations where these laws have been enacted along with guidelines for workplace grooming and appearance standards.
State protections:
To date, seven states have enacted laws that expressly prohibit hairstyle discrimination.
California
· Background: The state's Fair Employment and Housing Act (FEHA) prohibits employers from discriminating against and harassing individuals because of race and certain other characteristics.
· Covered employers: The FEHA's anti-discrimination provision applies to employers with five or more employees. The anti-harassment provision applies to all employers.
· Hairstyle discrimination protections: Effective January 1, 2020, the FEHA was amended to clarify that the term race includes traits historically associated with race, including hair texture and protective hairstyles (including but not limited to braids, locks, and twists).
Colorado
· Background: Colorado prohibits all employers from discriminating against individuals because of race and certain other characteristics.
· Hairstyle discrimination protections: Effective September 14, 2020, state law was amended to clarify that the term race includes hair texture, hair type, or a protective hairstyle commonly or historically associated with race. Under the law, a protective hairstyle includes braids, locks, twists, tight coils or curls, cornrows, Bantu knots, Afros, and headwraps.
Maryland
· Background: Maryland prohibits employers with 15 or more employees from discriminating against individuals because of race and certain other characteristics.
· Hairstyle discrimination protections: Effective October 1, 2020, state law was amended to clarify that the term race includes traits associated with race, including hair texture, afro hairstyles, and protective hairstyles. Under the law a protective hairstyle includes braids, locks, and twists.
New York
· Background: The state of New York's Human Rights Law (NYHRL) prohibits employers with four or more employees from discriminating against individuals because of race and certain other characteristics.
· Hairstyle discrimination protections: In 2019, the state amended the NYHRL to clarify that the term race includes traits historically associated with race, such as hair texture and protective hairstyles (including but not limited to braids, locks, and twists).
New Jersey
· Background: The state's Law Against Discrimination (LAD)'s prohibits all employers from discriminating against individuals because of race and certain other characteristics.
· Hairstyle discrimination protections: In 2019, the state amended the LAD's definition of race to include traits historically associated with race. Protected traits consist of, but are not limited to, hair texture, hair type, or protective hairstyles such as braids, locks, and twists.
Virginia
· Background: The state's Human Rights Act (HRA) prohibits employers with 15 or more employees from discriminating against applicants and employees on the basis of race and certain other characteristics. Additionally, the HRA prohibits employers with more than five employees from discharging an employee because of their race and certain other characteristics.
· Hairstyle discrimination protections: Effective July 1, 2020, the HRA's definition of race was amended to include traits that are historically associated with race, including hair texture, hair type, and protective hairstyles such as braids, locks, and twists.
Washington
· Background: The state prohibits employers with eight or more employees from discriminating against applicants and employees because of race and certain other characteristics.
· Hairstyle discrimination protections: Effective June 11, 2020, the state amended the law to expand race discrimination protections to include traits historically associated with, or perceived to be associated with, race. This includes, but is not limited to, hair texture, hair type, or protective hairstyles such as braids, locks, and twists.
Similar legislation has been proposed in more than 20 other states. These laws are sometimes referred to as CROWN Acts (CROWN stands for Create a Respectful and Open World for Natural Hair).
Local protections:
Several local jurisdictions have also approved laws that expressly prohibit hairstyle discrimination, including but not limited to:
· Broward County, FL
· Clayton County and Stockbridge in GA
· Covington, KY
· New Orleans, LA
· Montgomery County, MD
· Kansas City, MO
· Durham and Greensboro in NC
· Akron, Cincinnati, Columbus, and Toledo in OH
· Pittsburgh and Allegheny County in PA
Proposed federal legislation:
In September 2020, the U.S. House of Representatives approved legislation that would amend federal law to expressly prohibit hairstyle discrimination, but the Senate never voted on it. This legislation is likely to be proposed again with the new Congress.
Potentially problematic practices:
Some examples of practices that could be found to violate laws prohibiting hairstyle discrimination include:
· Prohibiting twists, locks, braids, cornrows, Afros, Bantu knots, or fades.
· Telling a Black applicant or employee with locks that they can't be in a customer-facing role unless they change their hairstyle.
· Refusing to hire a Black applicant with cornrows because their hairstyle doesn't fit the "image" the employer is trying to project.
· Transferring an employee to a non-customer-facing position because a customer complained about their Afro.
Other considerations:
Even in the absence of an express prohibition on hairstyle discrimination, enforcement agencies and employees may continue to assert that such discrimination is already barred by laws prohibiting race discrimination. Consider the potential impact of hairstyle restrictions on recruitment, morale, and retention.
You may also have an obligation to accommodate employees' hairstyles under federal, state, and/or local laws. For instance, under federal law, employers with 15 or more employees must provide reasonable accommodations for employees' sincerely held religious beliefs or practices, unless it would cause an undue hardship. For appearance and grooming standards, this typically means making an exception to a policy when it conflicts with an employee's known religious beliefs or practices. For example, an employer that has a policy limiting the length of employees' hair might need to make an exception for an employee who maintains uncut hair for religious reasons.
Guidelines for grooming and appearance standards:
To avoid potentially discriminatory practices, consider simply requiring employees to keep hair kempt. However, conscious and unconscious biases may impact what decision-makers view as "kempt," and some may wrongly presume that certain hairstyles are inherently messy or disorderly. Clarify that kempt means that the hair is clean and well combed or arranged, and that employees can comply with a variety of hairstyles, including but not limited to locks, cornrows, and Afros that meet those criteria.
Where employers have legitimate health or safety concerns related to hair, they can generally consider a requirement for hair ties, hair nets, head coverings, and/or alternative safety equipment provided they aren't enforced in a discriminatory manner and don't otherwise violate applicable law.
Conclusion:
Grooming and appearance standards must comply with federal, state, and local nondiscrimination laws. Make sure you understand the laws that apply to you and that your policies comply. Consult legal counsel as needed.