Avoiding Workplace Discrimination Against Employees With Natural Hairstyles

In a developing employment law trend, wearing one’s natural hair in the workplace has become a right in certain jurisdictions. People of color are most likely to experience discrimination in the workplace based on the style and texture of their natural hair.

In a study surveying 2,000 working women aged 25-64 employed in an office setting, the Creating a Respectable and Open World for Natural Hair (CROWN) Coalition found that African-American women are 80% more likely to change their natural hair to conform to social norms at work and that African-American women’s hair is three times more likely to be perceived as unprofessional in the workplace.

Natural Hairstyle Discrimination Claims Pre-CROWN

In its 2014 Catastrophe Management decision, the Equal Employment Opportunity Commission (EEOC) sued an employer on behalf of an African-American female applicant whose job offer was rescinded after she refused to cut off her dreadlocks. The employer asserted that the applicant’s dreadlocks violated their personal grooming policy, which required hairstyles to “reflect a business professional image” and prohibited “excessive hairstyles.”

The federal district court dismissed the EEOC’s complaint, holding that a hairstyle constitutes a “mutable characteristic” which is not afforded Title VII protection. On appeal, the Eleventh Circuit affirmed the district court’s decision, noting that although dreadlocks are a natural outgrowth of the texture of black hair, that does not make them an immutable characteristic of race.

CROWN Act Becomes a Nationwide Employment Law Trend

The Catastrophe Management decision was one of many cases that necessitated nationwide legislative reform to provide protections for natural hairstyles in the workplace. On July 3, 2019, California became the first state to enact the Creating a Respectful and Open Workplace for Natural Hair (CROWN) Act. California’s CROWN Act went into effect on Jan. 1, 2020.

California’s Crown Act expanded the definition of “race” under the California Fair Employment and Housing Act (FEHA), to include traits historically associated with race such as hair texture and natural or protective hairstyles such as braids, dreadlocks, and twists. Employees who allege discrimination based on their natural hair are permitted to seek remedies under California’s FEHA which include back pay, front pay, reinstatement or hiring, out of pocket expenses, attorney’s fees, and punitive damages.

According to the CROWN Coalition, laws prohibiting discrimination based on natural hairstyles or textures have been passed in seven states (California, New York, New Jersey, Virginia, Colorado, Washington, and Maryland) and in two localities, Cincinnati and Montgomery County, Md.

The CROWN Act is also on its way to becoming federal law, and if enacted, will prohibit discrimination based on natural hair nationwide. On Sept. 21, the House passed the CROWN Act (H.R. 5309), and it was submitted to the Senate for consideration.

Best Practices for Employers

The CROWN Act movement quickly evolved into a nationwide trend, and we anticipate that most states will enact some form of this legislation in the foreseeable future. Below are a few best practices for employers to implement to ensure that your personal grooming policy is CROWN Act compliant:

• Avoid using subjective and vague terminology in personal grooming policies such as “excessive hairstyles,” as was in the policy challenged in the Catastrophe Management decision, or policies requiring an employee’s hair to be “smooth,” “contained,” or “pulled back,” unless there is a legitimate health or safety justification. Ensure the provision is implemented without regard to race or ethnicity.
• Conduct an internal audit of personnel records to ensure that minority employees are not being disproportionately impacted by personal grooming policies.
• Add clarifying language to your existing personal grooming policy. If your employee handbook currently includes a policy that requires an employee to be physically present in a manner that is “professional” or to reflect a “corporate or business image,” add language clarifying that the term “professional” is defined to include natural hairstyles such as braids, dreadlocks, and twists.
• Avoid outright prohibitions on specific hairstyles historically associated with race, such as dreadlocks, twists, afros, or braids. As the proponents of the CROWN laws suggest, these prohibitions have historically caused a disparate impact on minorities.
• Ensure that all employees responsible for participating in the hiring process are aware that the appearance of an applicant’s hair should not be a consideration. Employees making hiring decisions should also be instructed to refrain from commenting on an applicant’s physical appearance during a job interview.

Employers should monitor this legislative development at the federal and state level if your state has introduced, but has not yet enacted CROWN legislation.

If your state has enacted the CROWN Act, include information regarding natural hairstyle discrimination in your racial discrimination, retaliation, and harassment training modules. This will help ensure that employees will be made aware of the protections available to them, and supervisors will be familiar with the unique characteristics of discrimination based on natural hairstyles and can address these issues when they occur.

Awareness can serve as an effective tool to combat implicit bias and create a racially inclusive working environment.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Reba Letsa is an associate in the Baltimore office of Baker Donelson. She concentrates her practice in litigation with a focus on labor and employment issues.