In 2019, Dove, a popular beauty brand, and The CROWN Coalition began work on the CROWN Act, which stands for Creating a Respectful and Open World for Natural Hair. As it stands now, 19 states have enacted this Act, and we predict that the rest of the country will follow suit. Because of this, as an employer, you need to be familiar with what it is and how it will affect your practice to ensure you remain compliant.
If you own or manage a healthcare practice, your employees must comply with several health and safety protocols. Some of those protocols can even impact your employee’s appearance, such as requiring long hair to be pulled back when working in a clinical setting, wearing closed-toe shoes to protect from injury, or not having long fingernails with the potential to pierce a glove.
You can (and should) have policies like that to ensure a safe work environment. Many of you also have other dress code policies to support a professional appearance for your team. These policies may include wearing a uniform or a designated type of scrub set, ensuring clothes fit well and are not overly wrinkled, and other standard policies for professional dress.
Where employers can now face trouble is restrictions on the types of hairstyles that employees can wear. For example, a policy requiring that hair be pulled back into a smooth bun, or a rule against wearing braids, may sound like a reasonable policy concerning professional-looking hair. And, there’s nothing in federal law that provides specific legal protection around how someone wishes to style their hair. So it seems like this is an easy thing to regulate for your team, right?
The reality is that not every one’s hair is the same. It can be challenging and cost-prohibitive for some employees to meet “professional appearance” workplace hairstyle requirements, and having policies in your handbook that specifically comment on the texture or shape of the hair can now be a speedy way to find yourself at fault for discrimination.
Policies that mention having a slicked back or sleek or smooth ponytail are all examples that have been given by regulators as problematic; the fact of the matter is that for those with textured or wavy hair, this is not only costly but difficult to achieve on a day-to-day basis. Further and most importantly, how someone’s hair looks when it comes to the finer details has nothing to do with their ability to do the job.
Because these issues disproportionately impact black people and other minorities, what seem to be innocuous “business appearance” related dress code requirements can result in race discrimination as defined by the various CROWN Acts being passed across the country. As HR advisors and providers of customized employee handbook policies you’ve heard us extoll the value and importance of applying policies uniformly in order to stay out of legal trouble and as an effective and fair means for managing your team.
When the policy regulates hairstyle uniformly regardless of race, the foundation is now being laid which makes legal maneuvering take place which makes the case that if a policy results in race discrimination, the employer is now in trouble. If you are not careful with your personal and professional appearance policies, they can be used against you.
In recent years, many states have passed laws outright prohibiting discrimination based on hairstyle, effectively eliminating some extra steps an employee or applicant might otherwise have to go through to prove they experienced discrimination.
What are they?
The CROWN Acts being passed at the state level prohibits discrimination based on race-related hairstyles in the workplace. While laws already exist to protect employees from discrimination due to their race, the CROWN Act expands the definition of “race” to include “traits historically associated with race,” such as hair texture and protective hairstyles. This is similar to the Pregnancy Discrimination Act, which made it part of the law that discrimination based on “pregnancy” is unlawful discrimination based on sex. Read more about protected classes (every one of your employees has at least four!) here.
Restrictions on types of hairstyles can easily be interpreted as racial discrimination, so even if this law has yet to be passed in your state, it is imperative you, as an employer, are aware of it. This law does not mean that you cannot have grooming policies in the workplace. However, the grooming rules must not directly target hairstyles traditionally associated with persons of color or have a disparate impact on specific races.
Your grooming policies should have a valid, non-discriminatory objective business-related basis and be able to be uniformly applied to all employees.
Some examples of policies that are valid and non-discriminatory are:
- Perfumes, cologne, and other scented products should be worn with restraint
- No micro shorts or micro-minis without tights
- Clothes must be clean, well-fitting, and in good repair
- No offensive or foul language on T-shirts or headwear
- Maintain good personal and oral hygiene
- Hair must be clean
What we want you to notice about the above policies is that they can be applied equally to everyone in the workplace, employees and employers alike. Along with this, none of the policies specifically target a trait or attribute that may be associated with a protected class. According to the EEOC, a “protected class” is a group of people with a common characteristic who are legally protected from employment discrimination based on that characteristic.
How does it affect your practice?
To avoid issues in this area, you should review your handbook policies (if you’re a member with CEDR, we’ve already got this covered for you!) and internal practices to ensure you are not discriminating based on racial, cultural, or ethnic identity in your office. If you have a rule about employee hairstyles, be sure you have a legitimate objective job-related health or safety reason for doing so and apply it equally across the board for all employees while not running afoul of the CROWN Act if it applies to you.
As we mentioned above, policies surrounding types of hairstyles that are accepted in the workplace can be a quick path to racial discrimination. Therefore you must address it properly in your handbook, and we believe, you should do so even if this law has not been passed in your state yet. Incriminating your practice in writing, via your own policies, is the fastest way for a lawsuit to be brought against you.
Otherwise, this law should have no noticeable effect on your practice; having employees pull their hair back is a common requirement in the workplace that can be applied to anyone with long hair. The key here is equal treatment across the board.
This new law matches the guidance CEDR has always given to its members. Issues related to hairstyle arise most commonly in the Dress Code section of the employee handbook. Our suggested language in that area is carefully written to be neutral as applied to any protected class. If you’re already a member with CEDR, the next time you update your handbook, we will add this specific protected class category to your anti-harassment policy. If you are not, consider giving us a call to get more information on how we can help ensure you are compliant with this and everything else.
Compliance with federal, state, and local laws regarding discrimination is essential in your practice. CEDR’s HR Solution Center is staffed with experts in these areas. If you are a member or become one, our team of HR experts is ready to help you ensure you get the best outcomes for any employee issue that may arise and that your practice is a compliant place for everyone in your office.