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On July 1, 2020, a series of employment protection laws went into effect in Virginia. These laws provide a variety of improved employee rights, including reasonable accommodations for lactating and pregnant employees, a bar on discrimination based on gender identity and sexual orientation, prohibiting state and local governments from asking job applicants about their criminal history, new wage laws, redefining racial discrimination to now include hair discrimination and expanded whistleblower protections.
Discrimination based on hair is especially relevant given the Black Lives Matter movement that’s sweeping our nation. And while it might now seem like common sense to have such protections, Virginia is only part of a minority of jurisdictions that no longer allow this type of discrimination.
Hair Discrimination: A Historical Background
Since the beginning of the United States, Black people have endured discrimination and attempts at being controlled through rules or laws concerning their hair. For example, in 1786, Governor Don Esteban Miró created a law that required women of color to use a piece of cloth, or tignon, to cover their hair.
One purpose of this hair covering law was to prevent a Creole, mulatto or woman of African descent from drawing attention to herself with her hair, and in particular, drawing the attention of white men. In other words, this was an anti-miscegenation law. Another reason for enacting this law was to signify membership to the slave class, even if the woman wearing a tignon was not a slave.
After the abolition of slavery in the United States, many Blacks felt pressured to “fit in” with white society by changing their looks, including straightening their hair.
Recent Examples of Hair Discrimination
Hundreds of years have passed, but hair discrimination is still alive and well. In late 2018, a video went viral showing a high school wrestler (who identifies as multiracial) having his dreadlocks cut off in order to compete in a school wrestling match.
In 2016, the Eleventh Circuit Court of Appeals concluded that an employer’s grooming policy that banned employees from having dreadlocks did not violate Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits racial discrimination in the workplace.
In this case, Chastity Jones (Jones), who is Black, was offered a position as a customer service representative for Catastrophe Management Solutions. Upon learning that Jones had dreadlocks, a manager told her that she needed to cut off her dreadlocks. She refused and Catastrophe Management Solutions withdrew the job offer.
The U.S. Equal Employment Opportunity Commission (EEOC) took up the case and filed suit on Jones’ behalf. The EEOC argued that what happened to Jones was a form of racial discrimination and therefore illegal under Title VII. The U.S. District Court disagreed and dismissed the case.
In affirming the U.S. District Court, the Eleventh Circuit Court of Appeals reasoned that Title VII only barred discrimination based on immutable traits (an unchangeable characteristic of a person), such as hair texture. And because Jones’ offer was taken back because of her hairstyle (something that she could change) and not her hair texture (something she could not change), the discrimination she endured was legal under Title VII.
The court also reasoned that at issue here was discrimination based on a cultural practice, not an immutable characteristic. And because Title VII did not protect employees against cultural practice discrimination, Jones could not succeed in her lawsuit.
For the most part, federal courts recognized that discrimination based on hair texture was unlawful under Title VII. So discrimination based on an afro would be an illegal form of race discrimination. However, as reflected by the Jones case, federal courts generally refused to convey these protections to hairstyle discrimination, as well.
With courts failing to fully protect individuals from discrimination based on their hair, states and local jurisdictions realized that they needed to do something.
States and Localities Take on Hair Discrimination
California became the first state to pass a law against hair discrimination when Governor Gavin Newsom signed SB 188 into law in July 2019. Also known as the Create a Respectful and Open Workplace for Natural Hair or CROWN Act, this law included hair texture and protective hairstyles as protected racial traits. The CROWN Act listed braids, twists and locks as examples of protective hairstyles.
Earlier in 2019, the New York City Commission on Human Rights released guidance that declared that hairstyle and hair texture discrimination could also be a form of racial discrimination.
Other jurisdictions with laws similar to California’s CROWN Act include:
- New Jersey
- Cincinnati, OH
- Maryland
- Colorado
And not to be left behind, Virginia has joined this quickly growing list.
HB 1514: Virginia’s Ban on Hair Discrimination
In March 2020, Governor Ralph Northam signed HB 1514 which would make Virginia one of the newest states to take on hair discrimination. This law went into effect on July 1, 2020.
Fairly short as far as statutes go, HB 1514 explicitly states that racial discrimination under Virginia law now includes discrimination against an individual because of “traits historically associated with race, including hair texture, hair type, and protective hairstyles such as braids, locks, and twists.”
Put another way, if there is discrimination because of someone’s hairstyle or texture, then Virginia law may consider that as a form of unlawful racial discrimination, whether it’s at school or in the office.
However, this new law will likely apply only when the discrimination relates to a hair characteristic that has been traditionally connected to race.
The Future of Hair Discrimination Law
Senator Cory Booker (D-N.J.) and Congressman Cedric Richmond (D-La) have introduced the CROWN Act of 2019. This bill bans hair discrimination in various situations and circumstances including the workplace.
For instance, this law would prohibit an employer from discriminating against someone because of that person’s hairstyle or texture, as long as the hairstyle or texture is commonly associated with a particular national origin or race.
Many other states have proposed their own hair discrimination laws. But given the BLM movement and the added emphasis on fighting racial discrimination in this country, there’s a good chance that many more states will follow with their own hair antidiscrimination laws.
