April 17, 2020

Is Hair Discrimination Race Discrimination?

D. Sharmin Arefin

IN BRIEF

  • The movement to end hair discrimination is gaining traction.
  • Known as the CROWN Act, this law will prohibit discrimination based on hair style and hair texture.
  • Implementation and enforcement of the CROWN Act will require employers and schools to examine their facially neutral grooming and appearance policies and their disparate impact on African Americans and other minorities.

Is hair discrimination a new form of race discrimination?[1] Sadly, it is not new, and it is not novel. Minorities have suffered hair discrimination for years. A recent study[2] found that African American women face the highest instances of hair discrimination and are more likely to be sent home from the workplace because of their hair. The study also uncovered that 80 percent of African American women felt they needed to switch their hairstyle to align with more conservative standards in order to fit in at work.[3] Hair discrimination occurs not only in the workplace, but in schools as well:

  • In 2017, Mya and Deana Cook, twin sisters in Massachusetts, had to serve detention when school officials determined that their braids violated school policy.
  • In August 2018, Clinton Stanley Jr., a 6-year-old student at Book’s Christian Academy in Florida, was sent home from school on account of his hair. The child’s father was told that the school handbook states that boys are not permitted to have dreadlocks.
  • In September 2018, officials at Christ the King middle school in Terrytown, Louisiana, informed one of its students that she was being expelled from the school because her “extensions” (braids) were unacceptable under their school code.
  • In December 2018, Andrew Johnson, a black New Jersey teenager, was made to cut his dreadlocks by a white referee to continue participating in his school’s wrestling match.
  • In January 2020, DeAndre Arnold, an 18-year-old at Barbers Hill High School in Mont Belvieu, Texas, was suspended from school for dreadlocks he started growing in the seventh grade in the same school district. He was facing possibly missing his high school prom and graduation. He has since withdrawn from the school district and enrolled elsewhere.
  • In January 2020, a second student at Barbers Hill High School, 16-year-old Kaden Bradford, was suspended for the length of his dreadlocks. Kaden Bradford is DeAndre Arnold’s cousin.

In a 2017 case against Catastrophe Management Solutions, the 11th U.S. Circuit Court of Appeals ruled against the Equal Employment Opportunity Commission when it held that the defendant “…banning dreadlocks in the workplace under a race-neutral grooming policy—without more—does not constitute intentional race-based discrimination.”[4] The court effectively held that refusing to hire someone because of their dreadlocks is legal.

However, in three states, it is now illegal. The CROWN Coalition is an alliance of organizations, including Dove, National Urban League, Color of Change, and Western Center on Law and Poverty, that is dedicated to the advancement of anti-discrimination legislation. “CROWN” stands for Create a Respectful and Open World for Natural Hair and is a law that prohibits discrimination based on hair style and hair texture.

On July 3, 2019, California became the first state to pass the Crown Act, which updates the definition of “race” in the California Fair Employment and Housing Act[5] and the California Education Code[6] to be “inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”[7] The California CROWN Act prevents enforcement of grooming policies that claim to be race neutral, but in reality have a disproportionate negative impact on people of color. California’s CROWN Act became effective January 1, 2020.

The New York City Commission on Human Rights adopted guidelines under which it can impose a penalty on those who harass, demote, or fire individuals because of their hair.[8] The new guidelines describe the following hairstyles as not to be subjected to discrimination: “natural hair, treated or untreated hairstyles such as loss, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.”[9]

The guidance advises employers that requirements around “maintaining a work appropriate appearance” are acceptable, but warns that policies “that ban, limit, or otherwise restrict natural hair or hairstyles associated with Black people generally violate the NYCHRL’s anti-discrimination provisions.” Further, facially neutral grooming policies may also violate city law if an employer enforces an ostensibly neutral policy only against black employees. These guidelines became effective in February 2019.

On July 12, 2019, the State of New York solidified the NYC Commission on Human Rights Legal Enforcement Guidance on Race Discrimination on the Basis of Hair and became the second state to pass its own CROWN Act.[10]

On December 19, 2019, New Jersey became the third state to enact an anti-discrimination law to “protect people of color facing discrimination based on their hairstyle.” New Jersey’s CROWN Act amends the New Jersey Law Against Discrimination so that the term “race” includes “traits historically associated with race, including hair texture, hair type and protective hairstyles.”[11] In signing this legislation into law, Governor Phil Murphy stated that “[n]o one should be made to feel uncomfortable or be discriminated against because of their natural hair.”

Twenty-two additional states—Colorado, Delaware, Florida, Georgia, Illinois, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Oregon, Pennsylvania, South Carolina, Tennessee, Virginia, Washington, West Virginia, and Wisconsin—are considering enacting their own version of the CROWN Act.

On December 5, 2019, U.S. Senator Cory Booker introduced the CROWN Act of 2019 on the federal level to prohibit 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. Under the federal CROWN Act, hair discrimination is a prohibited form of racial or national origin discrimination.

Is hair discrimination race discrimination? Maybe. As of February 2020, it is in three states: California, New York, and New Jersey. In addition, there is a strong movement to enact the CROWN Act in 22 more states and federally. Implementation and enforcement of the CROWN Act will force employers and schools across the United States to take a closer look at their facially neutral grooming and appearance policies and their disparate impact on African Americans and other minorities.

[1] D. Sharmin Arefin is the founder and managing attorney of Arefin Law Office, LLC. Sharmin focuses her practice on consumer financial services defense, employment counseling and defense, and child welfare.

[2] Dove, The CROWN Research Study (2019).

[3] Id.

[4] EEOC v. Catastrophe Mgmt. Sols., 876 F.3d 1273, 2017 U.S. App. LEXIS 24533, 101 Empl. Prac. Dec. (CCH) P45,934, 27 Fla. L. Weekly Fed. C 405, 2017 WL 6015378.

[5] Calif. Gov’t Code § 12926.

[6] Id. § 212.1.

[7] Calif. S.B. 188.

[8] See N.Y.C. Admin. Code § 8107.

[9] Id.

[10] N.Y. S.6209A/A.7797A.

[11] N.J. Stat. § 10:5-5; see also https://www.assemblydems.com/mcknight-reynolds-jackson-speight-timberlake-bill-to-prohibit-hair-discrimination-advances-in-assembly/.

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D. Sharmin Arefin

Founder; Arefin Law Office, LLC

D. Sharmin Arefin is the founder and managing attorney of Arefin Law Office, LLC. Sharmin focuses her practice on consumer financial services defense, employment counseling and defense, and child welfare.