The CROWN Act: A Potential Solution to a Hairy Discrimination Issue

The CROWN Act

The Creating a Respectful and Open World for Natural Hair Act (CROWN Act) is a bill that prohibits discrimination based on a person’s hair texture or protective hairstyles commonly associated with a particular race or national origin. The CROWN Act was born out of years of work by a team of Black woman leaders, and the movement was publicized with the help of organizational and corporate sponsors, collectively referred to as the CROWN coalition. To galvanize support for the movement and to demonstrate the need for laws banning race-based hair discrimination, Dove conducted research studies in 2019 and 2021. These studies demonstrated workplace biases and policies disproportionately impact Black girls and women. For example, Black women are 1.5 times more likely to be sent home from work because of their hair, 3.4 times as likely to be perceived as unprofessional, and were consistently rated as less ready for job performance. In recent years, there have been countless news stories of Black children being forced to cut their dreadlocks to participate in school activities, and Black adults being denied employment because of their hairstyles.

Some of these personal accounts led to federal lawsuits, with the courts, so far, overwhelmingly finding no violation of Title VII of the Act. This trend is perhaps best exemplified in EEOC v. Catastrophe Mgmt. Sols., 852 F.3d 1018 (11th Cir. 2016), where the 11th Circuit ruled in favor of an employer who rescinded the job offer of a Black applicant when she refused to cut off her dreadlocks. The EEOC argued a prohibition on deadlocks constitutes racial discrimination because dreadlocks are a racial characteristic that is “physiologically and culturally associated with people of African descent.” Relying on decades of case law, the court reasoned that Title VII only prohibits discrimination based on immutable traits, not cultural practices. In reaching its holding, the court drew a narrow distinction between Black hair texture (an immutable characteristic) and Black hairstyles (a mutable choice). The court acknowledged calls in recent decades to broaden the definition of race under Title VII to include cultural practices. The opinion closed by suggesting the democratic process may be the appropriate avenue to “resolve what ‘race’ means (or should mean) in Title VII.” This Congressional call to action, along with the large gaps left by current legislation, was the catalyst CROWN Act proponents needed to get a bill on the House floor.

Current Status of the CROWN Act

In 2019, just three years after the Catastrophe Mgmt. Sols. decision, the CROWN movement gained political steam when then State Senator Holly J. Mitchell introduced the bill to the California legislature. Six months later, California passed the bill and became the first state to enact the CROWN Act. The CROWN Act was introduced on the federal level in the House and Senate in late 2019 and early 2020, respectively. The House passed the bill in September of 2020, but the bill ultimately lacked the votes needed in the Senate. Since then, the CROWN Act, or a variation of it, has been enacted in 17 states, 43 cities and counties, and legislation is pending in many others. This past spring, the bill was reintroduced in the House by Representative Bonnie Watson Coleman (D-N.J.) and passed on March 18, 2022, by a vote of 235-189. If the Senate votes on the bill before this year’s midterm elections, it is likely to receive enough votes to reach President Biden’s desk, as Democrats have a 50-50 majority (so long as two independent Senators vote with the Democrats) and Vice President Kamala Harris’ tie-breaking vote.

Compliance Factors

Depending on where a company is located, the CROWN Act may already be applicable law, and it appears to be gaining traction at the federal level. Accordingly, there are measures employers can take to ensure they are prepared for the CROWN Act. First, management should familiarize themselves with the language of the bill. The pending legislation makes it unlawful “to fail or refuse to hire or discharge any individual, or otherwise to discriminate against an individual, based on the individual’s hair texture or hairstyle, if [it] 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).” The bill also clarifies that though the CROWN Act is not an amendment to Title VII, it shall be enforced in the “same manner and the same means” as if it were incorporated into Title VII. Although critics argue the legislation could undermine workplace safety, proponents have pointed to the “longstanding provisions under civil rights laws” that enable employers to protect their workforce.

Employers should also review the language of their current dress and grooming policies to evaluate whether a facially neutral hairstyle policy disproportionately affects workers, particularly those of African descent. Employers should consider not only updating old policies but also implementing new, non-discriminatory hair policies that are inclusive and allow for hairstyles commonly associated with a particular race or national origin. Where necessary, employers should include and explain workplace safety issues related to hair choice and allow for potential accommodations or personal protective equipment to address safety issues. Finally, by explicitly stating that the intention is to foster an inclusive, respectful environment, while also keeping employees safe, employees may feel empowered to escalate issues when they experience differential treatment.