You may have noticed a headline or two about approval in the House of Representatives for the “CROWN Act,” on March 18. Although this measure is fully endorsed by the President, prognosticators are betting it will fail in the U.S. Senate – for the expressed reason, not that hairstyle discrimination should not be enforced, but because it is arguably already covered by existing law. Regardless, employers can use this as an opportunity to review existing practices and policies to obviate any such claims in the future, regardless of the outcome of this law.
The “CROWN” reference in this Bill is to “Creating a Respectful and Open World for Natural Hair Act of 2022,” the stated goal of which is to prohibit discrimination based on an individual's texture or style of hair. And if enacted, it would “be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against an individual, based on the individual's hair texture or hairstyle, if that hair texture or that hairstyle 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).”
It is prompted by anecdotal evidence of situations in which African Americans have been denied a position or discharged as a result of adopting a hairstyle (e.g., dreadlocks) which an employer found not in keeping with a workplace environment.
Those opposed to the law argue: H.R. 2116 asserts that ‘‘society has used (in conjunction with skin color) hair texture and hairstyle to classify individuals on the basis of race'' and that ‘‘[r]acial and national origin discrimination can and do occur because of longstanding racial and national origin biases and stereotypes associated with hair texture and style'; and, to the extent these assertions are true, such conduct is already illegal under federal civil rights laws.
But, in contrast, in a real-world lawsuit filed by the Equal Employment Opportunity Commission, Chastity Jones was among a group of applicants who were selected for a group interview on May 12, 2010 by Catastrophe Management Solutions, a Mobile catastrophic insurance claims company. At the time of the interview, Jones, who is black, had blond hair that was dreaded in neat curls, or “curl locks.” Catastrophe's human resources staff conducted the group interview and offered Jones a position as a customer service representative. Later that day, the human resources staff met with Jones to discuss her training schedule. During that meeting, they realized that Jones's curled hair was in dreadlocks. The manager in charge told Jones that the company did not allow dreadlocks and that she would have to cut them off in order to obtain employment. Jones declined to cut her hair, and the manager immediately rescinded the job offer. But, the federal court of appeals ultimately held that the federal discrimination law relating to “race” prohibits discrimination based on “immutable” traits; yet, dreadlocks—though culturally associated with race—are not “immutable” characteristics of black persons – and hence, are not covered by the law. Opponents also argue that such a prohibition may prevent employers from regulating hairstyles for workplace safety reasons, citing concerns about potential accidents on production lines.
Proponents counter that the CROWN Act expressly provides that its employment nondiscrimination provision ‘‘shall be enforced in the same manner and by the same means, including with the same jurisdiction, as if such subsection was incorporated in Title VII of the Civil Rights Act of 1964.'' And under the longstanding, burden-shifting scheme applied by courts in discrimination cases, an employer may defeat a discrimination claim by asserting that workplace safety was a legitimate, non-discriminatory reason for taking an adverse employment action against an employee, with the burden then shifting to the employee to prove that the asserted reason was a pretext for discrimination. Assuming the employee cannot demonstrate that the employer's assertion of workplace safety was pretextual, the employer would prevail against an employment discrimination claim. In this way, current employment discrimination law would allow employers to take actions to ensure workplace safety—including by regulating hair length and taking other hair-related measures—and the CROWN Act expressly incorporates this standard by reference.
Whether this Bill passes now is not determinative. For one thing, 11 states have already adopted similar laws; and 16 others (not Ohio) have them pending at this time; so, it could be considered here, by the State, or even by municipalities. Regardless, the EEOC's position is that current law does extend to this issue; and it is already actively pursuing similar claims. For example, last October it filed suit in the Eastern District of Louisiana, EEOC v. American Screening, LLC, alleging that an employee was hired wearing a wig with straight hair, but was fired when she started wearing her natural hair in a bun, refusing to change back to the wig. The employer who allegedly disregarded the advice of her HR manager, reportedly asserted: “She needs neatly groomed hair[.] Some days it's sticking every which way and looks like she just rolls out of bed and comes to work.” Significantly, the EEOC's position is that this scenario was covered by already existing employment discrimination law, without needing to rely on the CROWN Act.
The takeaway from all of this is that, in this regard, as with most employer policies and practices, an employer should be asking themself, “does this rule/requirement actually pertain to an individual's ability to perform the essential functions of his/her job?” For example, in the case of someone whose hair interferes with the ability to wear a breathing apparatus required for the job, the rationale is obvious. As the ability to make that connection diminishes, the likelihood that the rule could later be defended falls as well. Employers can be aware of this potential now and reassess any such grooming policies before they become subject to challenge.
Originally Published 13 April 2022
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