The (Legal) Hair Trend That Is All the Rage

There has been a strong trend in recent years in which state and local governments across the country have expanded the definition of race for purposes of anti-discrimination statutes to include traits that are historically associated with race, such as hair textures and styles.

The “Creating a Respectful and Open World for Natural Hair Act,” or CROWN Act, per its chief proponents, is “a law that prohibits race-based hair discrimination, which is the denial of employment and educational opportunities because of hair texture or protective hairstyles including braids, locs, twists or bantu knots.” As of this article’s publication, 18 states—including, most recently, Massachusetts—and over 40 smaller units of government (i.e., counties and municipalities such as Cincinnati, Ohio and Austin, Texas) have enacted some form of the CROWN Act.

As typically adopted, the CROWN Act expands the definition of “race” in anti-discrimination laws to encompass traits associated with race; namely, hair textures and styles. Specifically, the statutes often refer to “protective hairstyles,” and provide non-exhaustive lists of examples that tend to mirror the examples provided by the Act’s proponents, namely braids, twists, locs/locks, twists, or bantu knots.

To date, the states that have passed some iteration of the CROWN Act are:

• California;
• Colorado;
• Connecticut;
• Delaware;
• Illinois;
• Louisiana;
• Maine;
• Maryland;
• Massachusetts;
• Nebraska;
• Nevada;
• New Jersey;
• New Mexico;
• New York;
• Oregon;
• Tennessee;
• Virginia; and
• Washington.

With legislation already proposed in many other statehouses throughout the country, more states will likely soon follow suit. Some members of the United States Congress have also proposed CROWN Act legislation, though, it is yet to be seen whether it will gain sufficient traction to become federal law.

As a practical matter, employers in states, counties, or municipalities where an iteration of the CROWN Act has been adopted should be mindful of the expanded definition of the term “race.” In particular, employers in those states should view employee handbooks and policies related to personal appearance to ensure they do not conflict with the CROWN Act. Employers in locations where the CROWN Act has not been adopted should still be mindful of it because they too may soon have to comply with such legislation.

Regardless of the CROWN Act, all employers should be cognizant that conduct based on an individual’s appearance could, arguably, be considered race related under existing anti-discrimination laws such as Title VII and its state or local equivalents. Therefore, all employers should be cautious about making employment-related decisions based on an individual’s appearance.