Both New York City and California have recently taken steps to ban hairstyle-based discrimination. On Monday, April 22, 2019, the California State Senate passed the CROWN Act (Create a Respectful and Open Workplace for Natural Hair), which seeks to amend California’s anti-discrimination statute, the California Fair Housing and Employment Act (“FEHA”). The CROWN Act, if passed by the State Assembly, would modify FEHA’s definition of “race” to expressly include “traits historically associated with one’s race, such as hair texture and protective hairstyles.” Protective hairstyles are those that allow the wearer to avoid regular and harmful hair treatment, such as hair relaxers, and include cornrows, braids, and locks.
Earlier this year, in February 2019, the New York City Human Rights Commission (“HRC”) issued a guidance memorandum clarifying that the City’s anti-discrimination law already prohibits hairstyle-based discrimination. The guidance memorandum states that the City’s anti-discrimination law protects people’s right to maintain “natural hair, treated or untreated … such as locks, cornrows, twists, braids, Bantu knots, fades, Afros, and the right to keep hair in an uncut or untrimmed state.”
Hairstyles are often closely related to racial, ethnic, or cultural identities. The California bill and NYC HRC guidance address historical stereotypes against hairstyles associated in particular with people of color. The NYC HRC explains that employer- and public accommodation-bans on cultural hairstyles are often rooted in “white standards of appearance” and “perpetuate racist stereotypes that Black hairstyles are unprofessional.” The HRC clarifies that its guidance on hairstyle-based discrimination does not prohibit employers from maintaining standards of professionalism or legitimate health and safety rules, but these must be applied consistently, regardless of race, and enforced in a manner that does not target specific hairstyles.
This movement arises in the face of a 2016 decision by the United States Court of Appeals for the Eleventh Circuit, EEOC v. Catastrophe Management Solutions, in which the EEOC asserted that employer CMS’s refusal to hire a woman with locks, whose management reportedly stated the hairstyle “tends to get messy,” constituted race discrimination in violation of Title VII. In support of its decision not to hire the woman, CMS cited its policy that employees must look “professional.” The appeals court upheld the employer’s decision, finding that hairstyles are not immutable characteristics, therefore they do not constitute “race” protected by Title VII. Last year, the United States Supreme Court declined to hear the case. Accordingly, the court’s opinion stands in the Eleventh Circuit (Alabama, Georgia, and Florida).
Notably, because California’s proposed and NYC’s current hair-based discrimination bans are expressly focused on remedying past discrimination against Black individuals, it remains to be seen whether non-Black individuals who don locks, cornrows, or other protective hairstyles will fall under the protections afforded by these laws since a court could find this form of expression not to be “historically associated” with non-Black races or culture. We will continue to update on the status of the California bill and other state and local initiatives sure to follow.