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Don’t Wig Out: What Employers Need To Know About Discrimination Based On Natural And Protective Hair – Discrimination, Disability & Sexual Harassment

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 has become one of
18 states to codify protection against discrimination based on hair
style and 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
discrimination in the workplace to ensure compliance with
applicable state and local law.

Massachusetts Law

Passage of the CROWN Act in Massachusetts was inspired in part
by two Black female students at a charter school located in the
state who were reportedly disciplined in 2017 because their hair
styles violated the school’s dress code and appearance

The CROWN Act was implemented to prevent such outcomes by
expanding the definition of discrimination based on race under a
number of Massachusetts laws, including those governing
discrimination in employment, housing, and lending; public and
charter schools; and places of accommodation. The definition now
includes discrimination based on traits historically associated
with race, like 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 CROWN Act’s passage, after the Act’s
October 24, 2022 effective date it will be unlawful for an employer
in Massachusetts to take an adverse employment action against any
applicant or employee on the basis of their natural or protective
hair. Employers who violate these new protections may face a charge
of discrimination filed with the Massachusetts Commission Against
Discrimination (“MCAD”) and ultimately be subject to suit
based on a claim of racial discrimination under Massachusetts

The CROWN Act requires MCAD to adopt rules and regulations,
formulate policies, and make recommendations necessary to fulfill
the purposes of these new definitions, which will be pivotal for
employers in their compliance efforts moving forward.

Other States and Localities That Have Passed CROWN Acts

To date, 18 states (including Massachusetts) have extended
statutory 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. Louisiana’s law went into effect as
recently as August 1, 2022.

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

While there is not currently a CROWN Act in place at the federal
level, parallel legislation has been proposed in the past two
congressional sessions, with the U.S. House of Representatives
actually passing a proposed bill on the topic in March 2022.

Proponents of the passage of CROWN Acts at the federal, state,
and local levels maintain that policies which limit or restrict
natural hairstyles cause persons of color, and Black women in
particular, to be disproportionately excluded from educational and
employment opportunities, regardless of their qualifications.

Key Takeaways for Employers

Employers located in Massachusetts and in other states with
CROWN Acts, or with employees working from such states, should take
this opportunity to review their employee handbooks, particularly
any equal employment opportunity, anti-discrimination and
anti-harassment, and dress code and appearance policies included
therein. To the extent feasible, employers should remove any
outright restrictions on particular hairstyles and otherwise modify
any limitations placed on employees’ wearing their natural hair
to work. If the workplace requires some limitation on hairstyles
for a nondiscriminatory reason, such as for health and safety
purposes, employers should engage in an interactive process with
employees to determine if a reasonable accommodation may be made
under 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 may also consider whether any workplace training,
like that on discrimination and harassment, needs to be updated to
reflect these changes to the law.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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