Hair Style Discrimination Laws Gain Momentum

Currently, there is no federal law banning hair style discrimination in the workplace. Federal jurisprudence is otherwise split on the issue of whether employment policies banning certain African-American hairstyles violate Title VII of the Civil Rights Act of 1964 (“Title VII”).

EEOC v. Catastrophic Management Solutions

This split was evident in the December 2017 en banc decision of the Eleventh Circuit in EEOC v. Catastrophic Management Solutions. The employer had a policy of refusing employment to anyone, black or white, who used an “excessive hairstyle”, a category that included dreadlocks. Suit was brought by an African American female who had an employment offer rescinded after refusing to remove her dreadlocks.

In affirming dismissal, the majority of judges found dreadlocks are not an immutable characteristic of black individuals. The majority opinion implied the decision would have been different for an employment decision based upon a natural afro, which it deemed an immutable characteristic of black individuals.

Three judges dissented from the majority opinion. Citing the Supreme Court decision in Price Waterhouse v. Hopkins, they said “[an] employment decision based on a stereotype associated with the employee’s protected class may be disparate treatment under Title VII even when the stereotyped trait is not an “immutable” biological characteristic of the employee.”

Crown Acts

As has been the pattern for 20 years, many states and municipalities have gone farther than federal law to address hairstyle discrimination in the workplace.

On July 3, 2019, California enacted the Create a Respectful and Open Workplace for Natural Hair Act, also known as the Crown Act. The Act amended the definition of “race” under the California Fair Employment and Housing Act to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” “Protective hairstyles” is defined to include “such hairstyles as braids, locks, and twists.”

Following California’s lead, Crown Acts have been subsequently enacted in Colorado, Connecticut, Delaware, Maryland, Nebraska, New Jersey, New York, Virginia and Washington. Municipal codes patterned after the state Crown Acts have also been enacted in several municipalities, including Albuquerque, Cincinnati, Kansas City, New Orleans, Pittsburgh, St. Louis and Tucson.   

Crown Acts are also being considered by other states and municipalities. Earlier this month, the Louisiana Senate voted unanimously to enact a Crown Act in that state.

Takeaways for Employers

The movement to enact Crown Acts at the state and local level has proven to be politically popular. The Crown Act in Nebraska, in fact, was initially vetoed by Governor Pet Ricketts, but popular support pressured him to sign the Act into law earlier this month.

With the political popularity of Crown Acts, it is likely more states and municipalities will soon join the states and municipalities which have already enacted such laws. A federal Crown Act is not out of the question. Most employers should thus expect to be subject to such laws in the near future, and amend their grooming policies accordingly.   

Robert G. Chadwick, Jr. frequently speaks to employers and non-profit organizations regarding labor & employment issues. To contact him for a speaking engagement please e-mail him at rchadwick@realclearcounsel.com.

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