Seyfarth Synopsis: New Jersey Has Joined California and New York as the Third State to Formally Amend Its Anti-Discrimination Laws to Include Hairstyle Discrimination as a Form of Race-Based Discrimination. This Law is Effective Immediately.
On December 19, 2019, Governor Phil Murphy signed the Create a Respectful and Open Workplace for Natural Hair Act ("CROWN Act"), which amends the New Jersey Law Against Discrimination's ("LAD") to make clear that hairstyle discrimination is included in the existing prohibition on race-based discrimination. This legislative amendment, which is effective immediately, essentially adopts the September 2019 guidance from the New Jersey Division on Civil Rights ("DCR") confirming the DCR's own interpretation of the LAD's race-based discrimination prohibition to include hairstyle discrimination. This law also follows similar amendments passed by California and New York earlier this year.
Amendment to the LAD and DCR Enforcement
The CROWN Act amends the LAD by clarifying and confirming that the existing ban on race-based discrimination includes discriminating against employees and applicants on the basis of "traits historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles." The CROWN Act states that the term "protective hairstyles" includes, but is not limited to, "such hairstyles as braids, locks, and twists." Finally, the CROWN Act notes that this amendment was "intended to remove any confusion or ambiguity over the scope of the LAD and its applicability to race discrimination predicated on such traits."
This legislative amendment was not that all surprising. In a prior alert, we discussed the DCR's official guidance issued on September 18, 2019 that clarified its interpretation that the LAD's existing ban of race-based discrimination includes discrimination based on hairstyles, particularly as it applies to hairstyles closely associated with Black people. As a reminder, the DCR guidance cautioned employers to avoid intentionally singling out such hairstyles and disproportionately applying a neutral personal appearance policy to maintain a "professional" appearance against those with hairstyles closely associated with Black people, and that customer preference for a certain hairstyle or professional appearance will not justify a violation of the LAD. The DCR guidance concluded by noting the following examples of a potential LAD violation: "An employer denying a promotion or bonus to, failing to address harassment or a hostile work environment against, imposing unfair work conditions on, or otherwise adversely disadvantaging an employee for wearing locs."
Changes Across the (Progressive) Nation
As we have discussed in previous client alerts, New Jersey's amendment to the LAD represents a continued trend among progressive legislatures to expand existing anti-discrimination laws to include hairstyle discrimination. The CROWN Act itself notes that it was modeled after equivalent laws in California and New York, both of which were signed into law in July 2019. Those two states amended their respective anti-discrimination laws to clarify that the term "race" includes "hair texture and protective hairstyles," including "braids, locks, and twists," such that the existing prohibitions on racial discrimination also prohibit discrimination against Black people because of hairstyles closely associated with being Black. Additionally, in February 2019, New York City issued guidance similar to that of the DCR clarifying that New York City's existing race discrimination laws include hairstyle-based discrimination.
Employer Takeaways
In light of New Jersey's guidance and the amendment to the LAD, employers operating in New Jersey should review their grooming or personal appearance standards, as well as training materials, to keep all relevant policies within these standards. Employers with New Jersey operations, as well as those with operations in California, New York State, and/or New York City, should also review their grooming or appearance policies to ensure they are facially neutral and should consider whether the application of these policies or other actions related to the hair of an applicant or employee might be deemed discriminatory in a specific instance.
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