The Crown Act & Hair-Based Discrimination

By David Gutwein - McMahon Berger P.C.

October 5, 2022

Employers should take heed as the number of states to enact legislation banning discrimination based on an individual’s hair has seen a significant increase over the past year. Creating a Respectful and Open Workplace for Natural Hair legislation (CROWN Act) expands the definition of race as a protected class to include traits which have historically been associated with race, such as hairstyle, hair texture, hair type and protective hairstyles. Examples of protective hairstyles commonly found in individual states’ CROWN Act legislation include braids, locs, twists, cornrows, bantu knots, afros, and headwraps.

While federal court precedent exists for finding an afro hairstyle protected under Title VII of the Civil Rights Act, other hairstyles historically associated with race have not found similar protection. Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164 (7th Cir. 1976); Equal Emp. Opportunity Comm’n v. Catastrophe Mgmt. Sols., 852 F.3d 1018 (11th Cir. 2016). As discrimination based on an individual’s hairstyle increasingly has been recognized as merely thinly veiled racial discrimination, several states have stepped in to legislate where they see a need for increased protection from such discrimination. California became the first state to enact the CROWN Act in July 2019 by amending its existing Fair Employment and Housing Act to include traits historically associated with race, such as hairstyle. (Cal. Gov. Code § 12926). In the three years since the CROWN Act’s passage in California, 17 other states have enacted similar legislation, with Massachusetts most recently doing so in July 2022.

On March 18, 2022, the U.S. House of Representatives passed CROWN Act legislation, but the bill has yet to be voted on by the Senate. In addition to the pending federal legislation and the 18 states with a CROWN Act or similar legislation, numerous states have pending bills to address the issue. Even those employers located in the 32 states that have not enacted CROWN Act legislation should exercise caution as various localities in states without a CROWN Act have local laws prohibiting such discrimination. For example, two Missouri municipalities, Kansas City and St. Louis City have enacted CROWN legislation. St. Louis’ CROWN Act prohibits “race-based hair discrimination [in] employment and educational opportunities”. (Board Bill 222).

Employers in locations with CROWN Act statutes or similar legislation should conduct a review of their current policies to ensure compliance. The review may highlight a need for updates to employee handbooks, training programs, and employment policies to conform with applicable law. Particular attention should be paid to appearance and grooming policies, which often can generate complaints of discrimination. Employers also should look at the impact of their policies to ensure they do not disproportionately affect any protected group. Note that some states recognize exceptions to the requirements of the CROWN Act, such as when the grooming or appearance requirement is the result of a business necessity or safety need. Ultimately, before making any changes to existing policies, employers should determine whether the CROWN Act or similar legislation has been enacted in their area of operation.

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