Grooming policies have long been a point of contention between employers and employees. Employers prefer that employees sport a professional look, which typically includes a professional hairstyle. The issue for employees is that what is considered “professional” when it comes to hair can vary widely person-to-person or workplace-to-workplace. Moreover, when a dress code deems certain ethnic or non-Eurocentric hairstyles as “unprofessional” the end result may be discrimination. Until recently, hair discrimination was not necessarily illegal. Most state and federal discrimination laws do not proactively protect hair or hairstyles.

However, the national discussion about hair has changed drastically over the past decade; there’s more awareness that certain hairstyles, types, and textures are closely related to race and culture. In response, over the past year states and cities have stepped in to pass specific hair discrimination laws based on a legislative model called the CROWN Act.

The "Create a Respectful and Open Workplace for Natural Hair Act", aka the CROWN Act, was signed into law this past December in New Jersey - the third state to implement this type of legislation. The law makes it illegal to target people at work, school or in public spaces based on hairstyles that are traditionally associated with race; amending current state race discrimination laws to prohibit discrimination on the basis of "hair texture, hair type, and protective hairstyles," such as braids, dreadlocks, and twists. 

Prior to the passage of CROWN legislation, the Division on Civil Rights issued a “Guidance on Race Discrimination Based on Hairstyle” that emphasized treating people differently due to their hairstyle may violate existing anti-discrimination law. The new law brings clarity to the state’s anti-discrimination laws and came in direct response to high-profile examples of hair-based discrimination in New Jersey schools.

New Jersey is not the first state to explicitly prohibit hair-based discrimination. CROWN legislation was passed in California last summer and went into effect on January 1, 2020. New York also introduced and passed related legislation with Senate Bill 6209, which similarly prohibits discrimination based on natural hairstyles in schools and workplaces.

The CROWN Act is growing traction across the country, with more states likely to pass their own version in the coming months. Natural hair-based discrimination laws have already been passed at the local level in Montogomery County, MD and Cincinnati, OH and have been introduced in the following 13 states, to be voted on this year: 

• • Colorado
  • Flordia
  • Georgia
  • Illinois
  • Kentucky
  • Maryland
  • Massachusetts
  • Michigan
  • Pennsylvania
  • South Carolina
  • Tennesse
  • Virginia
  • Wisconsin

With many states following the example set in New York, California, and New Jersey, it is imperative that employers understand how this law affects their own dress code and grooming policies.

The CROWN Act does not eliminate an employer’s ability to make and enforce grooming policies. The law adds hairstyles that are “closely associated with race” to the class of protected racial characteristics under state law and contains the following:

• Defines “protective hairstyles” as those including braids, locks, and twists, but clarifies that this is not an exhaustive list; meaning other hairstyles may be protected
• States that discrimination based on a protected characteristic is banned as well as discrimination because a person is perceived as having a protected characteristic or because a person has an association with someone who has or is perceived to have any protected characteristic
• Affirms that - while employers are prohibited from discrimination based on hairstyles associated with race - FEHA exceptions for occupational qualifications and security regulations may still apply

Employers are still able to create dress codes and grooming policies so long as they do not discriminate against protected hairstyles. Employers are still able to terminate employees with protected hairstyles as well; as long as the reason is job- or performance-based and not discriminatory. However, discrimination based on hair characteristics can be difficult to identify on the surface, and thus employers now need to be very careful in order to prevent discrimination.

Employers operating in CA, NJ, and NY should review their dress codes, grooming policies, and general hiring and employment practices to ensure that all policies are:

• Imposed for non-discriminatory reasons
• Applied consistently across the organization
• Do not have a disparate impact on employees who fall within a protected class

Any blanket ban of ceratin hairstyles, especially those associated with race, could get a business in hot water and should be avoided. Affected employers should also consider implementing or updating workplace diversity training to include discussion about protected racial characteristics. 

Employers in the states that have NOT passed CROWN legislation or in states still considering adopting these laws should still be prepared to reexamine their policies and should consider preemptively updating their grooming policies to align with CROWN legislation.

While federal and state discrimination laws may not specifically define hairstyles as a protected racial characteristic, when combined with other protected rights like religion or disability, employees could still sue for discrimination under current laws. Meaning all employees should be very mindful of their standard grooming policies.