Crown Act legislation is the “wave” of the future

By Rachael Rustmann
Constangy, Brooks, Smith & Prophete LLP Nashville Office

It’s been three years since California followed the lead of New York City and became the first state to prohibit discrimination based on ethnic hair textures and styles. But now, a total of 18 states have enacted such legislation, including three Southern states.

The most recent states to join the wave are Louisiana, Massachusetts, and Tennessee.

The legislation is generally known as the Creating a Respectful and Open World for Natural Hair Act – or the “Crown Act.” Although the legislation varies from state to state, the gist of it is the same. Generally, employers are prohibited from discriminating based on an individual’s hair texture and hairstyles such as braids, corn rows, Afros, dreadlocks, and twists.

The Crown Act 

In 2019, a study conducted by Dove concluded that Black women were disproportionately affected by workplace hairstyle policies and practices. In a survey of 1,000 Black and 1,000 non-Black women who were employed full-time, Dove reported that Black women were 50 percent more likely than their non-Black counterparts to be sent home from the workplace because of their hair. Eighty percent of Black respondents reported feeling that they had to change their hair from its natural state to fit in at the office.

In July 2019, California became the first state to prohibit discrimination at work and in public schools based on a person’s hair texture and “protective hairstyles,” such as braids, corn rows, Afros, dreadlocks, and twists. Although California was the first state to ban natural hair discrimination, New York City was the first jurisdiction to do so, in February 2019. In the past three and a half years that followed, “Crown Act legislation” has been enacted in a total of 18 states: California, Colorado, Connecticut, Delaware, Illinois, Louisiana, Maine, Maryland, Massachusetts, Nebraska, Nevada, New Jersey, New Mexico, New York State, Oregon, Tennessee, Virginia, and Washington State. On its attorney general’s website, the District of Columbia says that it has banned “hair discrimination” since 1977.

Crown Act legislation is pending in a number of other states, including Alabama, Alaska, Indiana, Michigan, Minnesota, Missouri, Rhode Island, South Dakota, and Utah.

In addition to state legislation, many municipalities nationwide have “Crown Act” ordinances.

Louisiana, Massachusetts, Tennessee

As already noted, the newest states in the fold are Louisiana, Massachusetts, and Tennessee. The following is a summary of their Crown Act provisions:

Louisiana’s Crown Act took effect on August 1. It amends the definition of intentional discrimination in employment to include any discriminatory practices with respect to any individual’s “compensation, or terms, conditions, or privileges of employment” because of “natural, protective, or cultural hairstyle.” “Natural, protective, or cultural hairstyle” is defined to include “afros, dreadlocks, twists, locs, braids, cornrow braids, Bantu knots, curls, and hair styled to protect hair texture or for cultural significance.”

The Massachusetts Crown Act took effect on July 26. It adds to the definition of “race” in various laws the term “protective hairstyle” and includes “hair texture, hair type, and hairstyles ... [and] natural and protective hairstyles such as braids, locks, twists, Bantu knots, hair coverings, and other formations.” Among other laws, the change applies to the definition of “race” in the Massachusetts Fair Employment Practices Act, which prohibits the denial of employment and educational opportunities in places of work, schools, and school-related organizations on the basis of race.

Tennessee’s version of the Crown Act, which became effective on July 1, prohibits employers from adopting policies that do not allow employees to wear braids, locs, twists, or other styles that are part of their ethnic culture or based on physical characteristics of their ethnic groups.

Federal legislation

Arguably, prohibitions on ethnic hair texture or styles could be a form of race or national origin discrimination under Title VII of the Civil Rights Act, based on a disparate treatment or disparate impact theory, depending on the circumstances.

Nonetheless, during the 2019-20 U.S. Congressional session, Sen. Cory Booker (D-NJ) and Rep. Cedric Richmond (D-LA) introduced a bill to create a federal “Crown Act.” The bill did not pass, but in 2021, Rep. Bonnie Watson Coleman (D-NJ) introduced similar legislation, which passed in the House of Representatives this past March by a vote of 235-189. Fourteen Republicans joined the Democrats in support of the bill.

The House bill would expressly prohibit employment discrimination 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).”

The fate of the Crown Act bill in the Senate is uncertain. The Senate is split 50-50 between Republicans and Democrats, with Vice President Kamala Harris as the tie-breaking vote. However, Democratic Sens. Joe Manchin (D-WV) and Krysten Sinema (D-AZ) have been known to vote with the Republicans on some legislation. Moreover, the makeup of both houses of Congress could change based on the outcome of the November elections. On the other hand, Crown Act legislation does not appear to be a strict party-line issue, as the House vote demonstrated.

Recommendations for employers

Employers in jurisdictions with “Crown Act” legislation should review their appearance and grooming policies and practices to ensure that they are in compliance with applicable law. Beyond that, all employers should consider operating as if “Crown Act” legislation applies to them, unless there is a genuine safety issue or other bona fide reason to prohibit certain hairstyles. This will allow employers to be prepared in the likely event that legislation in their states – or federal legislation – is enacted, or if a plaintiff challenges an ethnic hairstyle restriction on Title VII grounds. In addition to ensuring compliance with the law (or anticipated law), less restrictive appearance and grooming policies can also help employers create workplaces that are more inclusive. Finally, employers should also consider training supervisors, managers, and those responsible for making hiring decisions, on their appearance and grooming policies and individuals’ rights.