On March 18, 2022, the House of Representatives passed the Creating a Respectful and Open World for Natural Hair Act ("CROWN Act") of 2022. The purpose of this bill is to address the routine deprivation of educational and employment opportunities that people of color face for wearing their natural hair. This legislation also prohibits discrimination based on an individual's hair texture or hairstyle so long as that texture or style is "commonly associated with a particular race or national origin." 

Title VII has long prohibited discrimination based on race. Parties have argued that discrimination based on protective hairstyles violates Title VII. However, federal courts have narrowly interpreted the meaning of race and national origin, as to exclude discrimination based on hair texture or style.

Although similar legislation is pending before the Senate and the CROWN Act has not yet become law, prohibiting discrimination based on hair texture or style is gaining momentum among the states and within the federal government. 

The U.S. Armed Forces had appearance policies that barred natural or protective hairstyles that Black or African American service members commonly wore and described these hairstyles as "unkempt." Recently, the U.S. Army removed those hair requirements, recognizing that the "prohibitions on natural hairstyles were racially discriminatory, harmful, and bore no relationship to African-American servicewomen's occupational qualifications and their ability to serve and protect the Nation."

A number of states and localities, including Virginia, Maryland, Delaware, Illinois, Nebraska, Connecticut, California, New York, New Jersey, Washington, Colorado, and New Mexico, have enacted legislation similar to the CROWN Act, expanding the legal definition of race to include traits "commonly associated with race or national origin," including hair texture and style. In these states, employers may not refuse to hire, discharge, or otherwise discriminate against any individual on the basis of that individual's hairstyle or texture, which may include hair that is "tightly coiled or tightly curled, worn in locs, cornrows, twists, braids, Bantu knots, or Afros." 
In those states where specific legislation preventing discrimination based on hair or hair style as a subset of race discrimination does not exist, employers must still be mindful of their obligations under state and federal laws not to discriminate based on race. With the growing momentum on this issue, courts may well find that discrimination based on an individual's hairstyle runs afoul of Title VII or a similar state legislation. To the extent an employer maintains workplace hygiene and appearance policies, they should ensure that all such policies are directly related to the specific employment. Moreover, employers should consider whether they need to reconsider or revise such policies to reflect public sentiment on this issue, permitting employees to wear their hair in natural or protective hairstyles. 

In the event the U.S. Senate were to pass the CROWN Act, we expect President Biden would sign it into law. Employers should continue to monitor the status of this and other similar legislation on the federal and state level. In the interim, employers should review their handbook and other employment practices and policies to ensure they are in compliance with the current state of the law. Employers may also consider implementing diversity, equity, and inclusion ("DEI") training to educate managers and supervisors on hair discrimination as a form of racial discrimination, what qualifies as hair discrimination, and steps to take preventative measures against it.