Don’t Sneak: What Employers Need to Know About Natural and Protective Hair Discrimination | Venable LLP

On July 26, 2022, Massachusetts Governor Charlie Baker signed the Creating a Respectful and Open World for Natural Hair (“CROWN”) Act, prohibiting discrimination against employees and students on the basis of natural and protective hair. With the passage of the CROWN Act, Massachusetts became one of 18 states to codify protection against discrimination based on hairstyle and hair texture.

Given this recent trend in legislation, employers in Massachusetts and elsewhere should review employee handbooks, dress code and appearance policies, and any training provided on workplace discrimination to ensure compliance with applicable national and local laws.

Massachusetts Law

Passage of the CROWN Act in Massachusetts was inspired in part by two black students at a charter school located in the state who were allegedly disciplined in 2017 because their hairstyles violated the dress code and appearance policy from school.

The CROWN Act was implemented to prevent such outcomes by expanding the definition of racial discrimination in a number of Massachusetts statutes, including those governing discrimination in employment, housing, and loans; public and charter schools; and places of accommodation. The definition now includes discrimination based on traits historically associated with race, such as hair texture, hair type, hair length and protective hairstyles. “Protective hairstyles” are defined as braids, locks, twists, bantu knots, hair coverings and other formations.

As a result of the passage of the CROWN Act, after the law’s effective date of October 24, 2022, it will be illegal for a Massachusetts employer to take adverse employment action against a candidate or an employee based on their natural or protective hair. Employers who violate these new protections may face a discrimination charge filed with the Massachusetts Commission Against Discrimination (“MCAD”) and ultimately be sued based on a racial discrimination claim under Massachusetts law.

The CROWN Act requires MCAD to adopt rules and regulations, formulate policies and make recommendations necessary to achieve the objectives of these new definitions, which will be essential for employers in their compliance efforts in the future.

Other states and localities that have enacted Crown statutes

To date, 18 states (including Massachusetts) have expanded legal protections to prohibit discrimination based on natural and protective hair: California, Colorado, Connecticut, Delaware, Illinois, Louisiana, Maine, Maryland, Massachusetts, Nebraska, Nevada, New Jersey, New Mexico, New York, Oregon, Tennessee, Virginia, and Washington. The Louisiana law went into effect August 1, 2022.

CROWN laws have also been passed by the U.S. Virgin Islands and local jurisdictions such as New York, NY, Broward County, FL, New Orleans, LA, Montgomery County, MD, Kansas City, MO, and several localities in Georgia, Michigan, Pennsylvania, North Carolina and Ohio.

Although there is currently no CROWN Act in place at the federal level, parallel legislation has been proposed in the last two sessions of Congress, with the United States House of Representatives actually passing a bill. on the subject in March 2022.

Proponents of passing CROWN laws at the federal, state, and local levels argue that policies that limit or restrict natural hairstyles disproportionately exclude people of color, and black women in particular, from educational and career opportunities. employment, regardless of their qualifications. .

Key takeaways for employers

Employers located in Massachusetts and other states with CROWN laws, or with employees working in those states, should take this opportunity to review their employee handbooks, especially any equal employment opportunity, anti-discrimination and harassment, and dress code and appearance policies. including. Where possible, employers should remove any outright restrictions on particular hairstyles and otherwise modify any restrictions placed on employees wearing their natural hair to work. If the workplace requires some limitation of hairstyles for a non-discriminatory reason, such as for health and safety purposes, employers should engage in an interactive process with employees to determine if a reasonable accommodation can be made in the circumstances. .

Additionally, employers should educate supervisory employees to ensure that all employment decisions, including those related to hiring, firing and other terms and conditions of employment, are free from discrimination on the basis of natural and protective hair. Employers can also determine whether workplace training, such as that on discrimination and harassment, needs to be updated to reflect these changes in the law.

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