Virginia, Colorado and Montgomery County, Maryland Ban Hair Discrimination

Angella N. Middleton

Virginia and Colorado are now the fourth and fifth states, respectively, and Montgomery County, Maryland is the first local government to ban hair discrimination. The bans in all three jurisdictions clarify that discrimination based on a person's hairstyle or texture is a form of racial discrimination.

The Virginia ban was made official on March 4, 2020 when Governor Ralph Northam signed Senate Bill 50. The bill amends the Virginia Human Rights Act to add a section that specifically expands the terms "because of race" and "on the basis of race" to include "traits historically associated with race, including hair texture, hair type, and protective hairstyles such as braids, locks, and twists."

Governor Jared Polis signed Colorado's CROWN Act, House Bill 20-1048, on March 6, 2020, expanding discrimination "on the basis of one's race" to include discrimination based on "hair texture, hair type, or a protective hairstyle commonly or historically associated with race, such as braids, locs, twists, tight coils or curls, cornrows, Bantu knots, Afros, and headwraps." The bill applies to public education, employment practices, housing, public accommodations and advertising.

The Montgomery County, Maryland ban took effect on February 6, 2020 after the county council voted unanimously in November to pass Bill 30-19. The bill prohibits discrimination in employment, housing, taxi service and other public accommodations based upon a person's hairstyle. Similar to Virginia and Colorado, the Montgomery County bill expands the definition of race to include "hair texture and protective hairstyles," and defines protective hairstyles as those "necessitated by, or resulting from, the immutable characteristics of a hair texture associated with race, such as braids, locks, afros, curls, and twists."

The Virginia, Colorado and Montgomery County laws are the latest in a nationwide effort around the "Creating a Respectful and Open Workplace for Natural Hair Act," or the CROWN Act, which seeks to "ensure protection against discrimination based on hairstyles" in the Fair Employment and Housing Act (FEHA) and state Education Codes. Supporters of the CROWN Act 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. In July 2019, California became the first state to pass a CROWN law, followed quickly by New York later in the same month, and New Jersey in December. We discussed New York's new law here and the enforcement guidelines leading to New Jersey's law here. Similar legislation has been introduced in more than 20 other states including Minnesota.

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.