In 2010, Catastrophe Management Solutions hired Chastity Jones. Jones, a black woman, was fired after she refused to cut her dreadlocks to comply with CMS’s employee grooming standards. The EEOC sued, arguing that Jones’s dismissal amounted to race discrimination. But the courts disagreed, finding Jones’s dreadlocks were not a fixed (i.e., immutable) trait constituting “race” as the term is used in Title VII.
The outcome in Catastrophe Management Solutions catalyzed legislative efforts to outlaw discrimination based on race-related hair textures and styles. In 2018, these efforts coalesced around the Creating a Respectful and Open World for Natural Hair (“CROWN”) Act, draft legislation devised by four black women, including Unilever’s chief operating officer and executive vice president of beauty and personal care.
This March, the U.S. House of Representative passed the CROWN Act in a 235-189 vote. The proposed legislation now moves to the Senate.
Here is what employers need to know about race-based hair discrimination and developments with respect to regulation outlawing such discrimination:
What is hair discrimination?
As proposed, the CROWN Act prohibits race-based hair discrimination in federally assisted programs, housing programs, public accommodations, and employment because of hair texture or protective hairstyles. With respect to employment, the Act provides:
It shall be an unlawful employment practice for an employer … to discriminate against an individual, based on the individual’s hair texture or hairstyle, if that hair texture or hairstyle is commonly associated with a particular race or national origin (including a hairstyle in which hair is tightly coiled or tightly curled, locs, cornrows, twists, braids, Bantu knots, and Afros).
In other words, race-based hair discrimination is a theory of discrimination under which a plaintiff asserts unlawful disparate treatment or disparate impact based on an employer’s prohibition on wearing a natural hair texture or hairstyle when such hair texture or hairstyle is closely associated with the plaintiff’s race or ethnicity.
Proponents of the CROWN Act argue that ending hair discrimination is critically important. A study conducted by the JOY Collective in 2019 surveyed 2000 women, half black and half white, employed full-time in an office or sales setting and found that:
- Black women are 80% more likely than white women to feel that they need to change their hair from its natural state to fit in at the office.
- Black women are one and one-half times more likely than white women to be sent home from work because of their hair.
- Black women are 30% more likely than white women to be made aware of a formal workplace policy with requirements around grooming.
In addition, the results of a 2021 research study conducted by soap-manufacturer Dove found that 53% of black mothers said that their daughters experienced race-based hair discrimination starting as early as five years old.
Courts have not been receptive to hair discrimination claims.
Despite growing public awareness of the phenomenon of hair discrimination, courts generally have been reluctant to interpret Title VII’s prohibition on race discrimination expansively enough to outlaw hair discrimination, even when the hairstyle in issue is one commonly associated with race.
The Eleventh Circuit’s 2016 decision in EEOC v. Catastrophe Management Solutions illustrates the difficulties plaintiffs have faced in asserting hair discrimination claims. As mentioned above, Chastity Jones, a black woman with dreadlocks, applied for and was offered a job as a customer service representative in a call center. After the offer was extended, the employer told Jones that it would not hire her with dreadlocks based on its policy requiring employees to be dressed and groomed in “a professional and businesslike image.” When Jones asked why dreadlocks were prohibited, the employer’s white HR manager responded that: “they tend to get messy, although I’m not saying yours are, but you know what I’m talking about.” The EEOC sued on behalf of Jones, alleging that she had been subjected to unlawful disparate treatment on the basis of race in violation of Title VII. The district court granted the employer’s motion to dismiss for failure to state a claim, and the Eleventh Circuit affirmed.
The core of both the district and appellate courts’ holdings was rejection of the EEOC’s attempt to frame race as a “social construct” with “no biological definition,” expansive enough to encompass “cultural characteristics related to race or ethnicity.” In other words, neither court was persuaded that wearing dreadlocks is tantamount to race even though dreadlocks are a manner of wearing the hair that is “physiologically and culturally associated with people of African descent.” Instead, the district court and the Eleventh Circuit agreed that “race” as the term is used in Title VII is confined to immutable characteristics—i.e., characteristics that are a matter of birth, not culture. In 2018, the U.S. Supreme Court declined review of the case.
Almost all courts that have squarely addressed this issue have reached the same conclusion as the Eleventh Circuit.
Legislative efforts to outlaw race-based hair discrimination have experienced significant success at state and local levels.
Faced with courts unwilling to interpret Title VII’s reference to “race” expansively, advocates seeking to outlaw race-based hair discrimination have channeled efforts into the legislative process:
- Currently, over a dozen states have enacted the CROWN Act or similar legislation outlawing race-based hair discrimination, including, most recently, Massachusetts. While the list includes a number of states historically associated with progressive employment regulation, such as California, Washington, and New York, it also includes states commonly viewed as taking a more middle-of-the-road approach on employment issues, such as New Mexico, Colorado, and Nebraska.
- The CROWN Act or similar legislation has been introduced, or is in the process of being introduced, in over 25 other states, including Texas, Oklahoma, Louisiana, and Pennsylvania. The only states with no reported legislative push to make hair discrimination unlawful are Hawaii, Alaska, Idaho, Wyoming, Montana, North Dakota, and Ohio.
- In addition, over 40 local governments, including those in Philadelphia, Pittsburgh, Albuquerque, and New Orleans, have adopted some form of the CROWN Act. In some instances, local measures have been narrower than state-law legislation. For example, in 2021, Harris County, Texas Commissioners Court approved a CROWN Act resolution calling for the county’s human resources department to develop personnel policies expressly prohibiting natural hair discrimination.
The federal CROWN Act’s fate is uncertain.
On March 18, 2022, the Democratic-led House voted 235-189 to pass the CROWN Act. But the bill’s future is uncertain. A previous attempt to fast-track the bill failed because Democratic sponsors could not obtain the two-thirds threshold required for that procedure.
The White House has expressed support for the legislation and indicated that President Biden will sign it into law if it reaches his desk. In a statement issued in connection with the House vote on the Act, the White House said: “The president believes that no person should be denied the ability to obtain a job, success in school or the workplace, secure housing, or otherwise exercise their rights based on a hair texture or hair style.”
But the bill now heads to a divided Senate, and Republican leaders have expressed disinterest, suggesting that resources would be better spent on other issues such as curbing inflation and controlling high gas prices.
While Vice President Kamala Harris could cast a tie-breaking vote if the Senate splits evenly over the bill, there still remains the chance of a filibuster, which can only be overcome by 60 votes.
The bottom line for employers
To date, courts have been reluctant to expand the meaning of “race” under Title VII to include other-than-immutable characteristics closely associated with race, such as hair texture and style. But as the natural hair movement continues to gain public support and traction, courts may face increased pressure to give closer consideration to this theory of discrimination. Indeed, opponents of the CROWN Act have publicly stated that they believe the Act is unnecessary because race-based hair discrimination should be outlawed by Title VII as currently written.
Even if the courts do not step in on this issue, local and state legislative efforts have gained considerable momentum. If this momentum continues, without regard to the fate of the federal CROWN Act, it would not be surprising to see a dozen or more additional states make hair discrimination unlawful within the next few years.
And perhaps even more important than keeping abreast of regulation is the fact that the research and scholarship being produced in connection with the natural hair movement is shining light on a diversity, equity, and inclusion issue that many employers may have never considered. Employers who have not reviewed employment policies and training programs with a view toward the issue of hair discrimination should consider doing so, particularly those employers operating nationwide.