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 policy.
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 law.
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.
Employers with questions regarding state and local laws prohibiting discrimination against employees on the basis of natural and protective hair, or looking to update any employment policies and procedures in light of these legislative changes, are invited to contact the authors of this article or any other attorney in Venable's Labor and Employment Group.