July 3, 2021 marked National CROWN Day – the second anniversary of when California became the first state to pass a CROWN law in July 2019. CROWN laws, or laws for "Creating a Respectful and Open Workplace for Natural Hair," are part of a nationwide effort seeking to "ensure protection against discrimination based on hairstyles" in the Fair Employment and Housing Act and state Education Codes. Supporters of CROWN laws have explained that these laws address generations-long pressures that forced or threatened to force persons of various ethnicities to feel that their hair needed to look a certain way in order to succeed.
Just a few weeks before CROWN Day, on June 11, 2021, Oregon became the 13th state to pass a CROWN law. Other states that have passed CROWN laws include New York and New Jersey in 2019; Virginia, Colorado, Washington and Maryland in 2020; and Connecticut, New Mexico, Delaware, Nebraska and Nevada in 2021.
The laws clarify that discrimination based on a person's hairstyle or texture is a form of racial discrimination. For example, the Oregon law expands the definition of race (and discrimination because of race) to include natural hair, hair texture, hair type and protective hairstyles. The law further defines "protective hairstyle" as a "hairstyle, hair color or manner of wearing hair that includes, but is not limited to, braids, regardless of whether the braids are created with extensions or styled with adornments, locs and twists." Oregon's law, like other states, applies to education, employment and certain housing policies. We discussed the passing of the Virginia, Colorado and Maryland laws here, New York's law here, and the enforcement guidelines leading to New Jersey's law here. CROWN Act legislation has been introduced in more than 20 other states.
On March 22, 2021, five Democratic members of the U.S. House of Representatives appealed to Vice President Kamala Harris as they reintroduced legislation banning discrimination based on a person's hair texture or style in federally funded programs and activities. New Jersey Senator Cory Booker who also reintroduced the bill in the Senate on March 27, 2021, has explained that although existing federal law prohibits some forms of hair discrimination as a type of racial or national origin discrimination, some federal courts have narrowly construed those protections in a way that permits schools, workplaces, and federally-funded institutions to discriminate against people of African descent who wear certain types of natural or protective hairstyles. The CROWN Act would make clear that discrimination based on natural and protective hairstyles associated with people of African descent, including hair that is tightly coiled or tightly curled, locs, cornrows, twists, braids, Bantu knots, and Afros, is a prohibited form of racial or national origin discrimination.
CROWN Act laws do not prohibit employers from making and enforcing grooming policies. However, while an employer may require an employee to change his or her hairstyle due to a legitimate health and safety concern, the employer should consider alternative ways to address these concerns before imposing any restrictions on an employee's hairstyle (e.g. utilizing hair nets or different safety equipment). Additionally, employers enforcing quasi-subjective standards such as "maintaining a professional appearance," should ensure that their managers understand this standard does not mean traditionally white-European.
If you have any questions, or would like to discuss how these laws will impact your business, please contact your regular Saul Ewing LLP labor and employment attorney.