*John Chase
Among the new laws that took effect in Maryland on October 1, 2020, the CROWN Act intends to end employer discrimination arising from traditionally African-American hairstyles.[1] California was the first state to pass similar legislation in 2019, and Maryland is the latest in joining five others that have followed suit.[2] At the federal level, though passing in the House on September 21, 2020, CROWN Act-inspired legislation currently languishes in the Senate Committee on the Judiciary after first being introduced in December 2019 by Senator Cory Booker (D-NJ).[3] Unwilling to wait for congressional action, and with local momentum building, proponents have elected to focus their efforts at the state level.[4]
I. Loss in the Courts Leads to a Coalition
CROWN is an acronym for Creating a Respectful and Open World for Natural hair, though according to one of the major proponents, beauty product company Dove, the “N” has changed in 2020 to “No racism.”[5] The CROWN Act, as a movement, is rooted in a coalition that formed subsequent to an unfavorable ruling by the United States Court of Appeals for the Eleventh Circuit in a Title VII discrimination suit out of Alabama.[6] The Eleventh Circuit’s decision affirmed a 2014 ruling from the United States District Court for the Southern District of Alabama, which held that the Equal Employment Opportunity Commission (EEOC) failed to state a claim for which relief could be granted on behalf of a woman who was unwilling to comply with a private employer’s “race-neutral written grooming policy.”[7] The woman in this case was offered a job in May 2010 as a customer service representative with an insurance claims processing company.[8] During the onboarding process, she was caught off guard when informed that she would have to cut off her dreadlocks to comply with the company’s policy that required employees to maintain hairstyles that “reflect a business/professional image” and prohibited “excessive hairstyles or unusual colors.”[9] The Eleventh Circuit agreed with the District Court’s application of rulings in two similar cases from the Fifth Circuit, holding that “as a general matter, Title VII protects persons in covered categories with respect to their immutable characteristics, but not their cultural practices.”[10] To drive this home further, the court said:
We recognize that the distinction between immutable and mutable characteristics of race can sometimes be a fine (and difficult) one, but it is a line that courts have drawn. So, for example, discrimination on the basis of black hair texture (an immutable characteristic) is prohibited by Title VII, while adverse action on the basis of black hairstyle (a mutable choice) is not.[11]
The Eleventh Circuit, shortly thereafter, denied a request from the EEOC to review the decision en banc.[12] Likewise, the Supreme Court declined to grant a petition for writ of certiorari, despite the pleas of special interest groups.[13]
II. CROWN Act Coalition: Efforts Shift to State Legislation
With the route through the federal courts at an impasse, the CROWN Act Coalition formed, which includes Dove, the National Urban League, Color of Change, and the Western Center on Law and Poverty.[14] Dove sponsored a study in 2019 that surveyed more than two-thousand women with a proportionate amount of black and non-black participants between the ages of twenty-five and sixty-four who were working full-time in an office or sales setting.[15] The study posed questions asking if and when formal appearance policies were made known, showing that women of color were 30% more likely to be made aware of such policies.[16] The study also shows that 80% of women of color are more likely to agree with the following statement: “I have to change my hair from its natural state to fit in at the office.”[17] In concert with the release of this study, the Coalition wasted no time in pushing for legal protections, sponsoring legislation in California, which was then introduced by State Senator Holly J. Mitchell and led to California becoming the first state to sign a CROWN Act into law on July 3, 2019.[18] With Maryland’s version of a CROWN Act law coming into effect on October 1, 2020, it is clear the Coalition has continued its push for nationwide acceptance, as shown by a colorful graphic on its website declaring “7 [states] Down, 43 to Go.”[19]
III. Cautious Statutory Language
Maryland’s implementation amends the Human Relations title of the State Government article of its official code and was accomplished by adding language that first defines protective hairstyles as including “braids, twists, and locks,” and then defines “race” as including “traits associated with race, including hair texture, afro hairstyles, and protective hairstyles.”[20] California took a similar route revising the definition of “race” in its Fair Employment and Housing Act.[21] California, Maryland, and other states and localities that have enacted CROWN Act-inspired legislation most likely followed this limited path to implementation in light of language from the Eleventh Circuit’s EEOC decision:
Title VII does not define the term “race.” And, in the more than 50 years since Title VII was enacted, the EEOC has not seen fit to issue a regulation defining the term. . . . This appeal requires us to consider, at least in part, what “race” encompasses under Title VII because the EEOC maintains that “if [] individual expression is tied to a protected trait, such as race, discrimination based on such expression is a violation of the law.”[22]
Indeed, when Montgomery County, Maryland jumped ahead of the state in November 2019 by introducing a CROWN Act-inspired local ordinance, it also chose to do so by adding language regarding hairstyles to its definition of “race.”[23] Further evidence that the approach so far has been to tread lightly on uncertain ground can be seen in how little language from Maryland’s Senate Bill 531 made it through to its final implementation.[24]
IV. CROWN Act in the Schools
The CROWN Act Coalition is also focusing on K-12 public and charter schools.[25] Colorado’s enacted legislation extends past employment to both public and private schools, as does proposed legislation in Ohio.[26] Proposed legislation in Alabama includes only public schools, and Louisiana hopes to cover employment first and then reach out to schools through resolutions by local city councils.[27] Depending on the method of implementation, this could potentially dilute or entirely remove standards for grooming and hairstyles that have been in place at venerable private schools for many decades.[28]
V. Questions Remain
For both employers and school administrations, these new laws have created concerns about how to craft grooming and hairstyle policies without running afoul and remaining racially neutral.[29] Although the Supreme Court declined to hear EEOC’s arguments in 2018 specifically related to discrimination based on hairstyles, it has previously ruled more generally on whether facially neutral policies implicitly discriminate.[30] It might only take one employee outside the group protected by CROWN Act legislation who is rejected for employment because he refuses to cut off a ponytail, or one private-school student who is sanctioned for not abiding by the “hair above the ears and off the collar” rule while one of his peers qualifies for an exception to the rule on the basis of race, for a state’s CROWN Act-inspired law to be challenged in the federal courts. Though the history of discrimination is real,[31] the tug-of-war over how best to frame the remedy constitutionally appears far from over.
* John Chase is a second-year evening student at the University of Baltimore where he is a Staff Editor for Law Review. John works full-time in the field of software engineering and data analysis where he has spent the majority of his lengthy career and has interests in criminal prosecution, legal aid, and international law.
[1] See Philip Van Slooten, Here’s a Look at New State Laws Taking Effect on Oct. 1, Md. Matters (Oct. 1, 2020), https://www.marylandmatters.org/2020/10/01/heres-a-look-at-new-state-laws-taking-effect-on-oct-1/.
[2] See Darian Symoné Harvin, The CROWN Act Should Be Passed in All 50 States, So Why Hasn’t It?, Harper’s BAZAAR (Oct. 9, 2020), https://www.harpersbazaar.com/beauty/hair/a34316254/crown-act-federal-and-state-hair-discrimination-law/.
[3] See id; see also CROWN Act, S. 3167, 116th Cong. (2020).
[4] See Harvin, supra note 2.
[5] See The CROWN Act: Working to Eradicate Race-Based Hair Discrimination, Dove, https://www.dove.com/us/en/stories/campaigns/the-crown-act.html (last visited Oct. 24, 2020) [hereinafter Working to Eradicate].
[6] See Annie Herndon Reese, The Roots of The CROWN Act: What Employers Need to Know About Hairstyle Discrimination Laws, Fisher Phillips (Apr. 23, 2020), https://www.fisherphillips.com/resources-newsletters-article-the-roots-of-the-crown-act-what.
[7] Equal Emp. Opportunity Comm’n v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1023, 1035 (11th Cir. 2016).
[8] Id. at 1022.
[9] Id.
[10] Id. at 1030.
[11] Id.
[12] Equal Emp’t Opportunity Comm’n v. Catastrophe Mgmt. Sols., 876 F.3d 1273, 1274 (11th Cir. 2017).
[13] Equal Emp’t Opportunity Comm’n v. Catastrophe Mgmt. Sols., 138 S. Ct. 2015, 2015 (2018); Reese, supra note 6.
[14] See D. Sharmin Arefin, Is Hair Discrimination Race Discrimination?, ABA (Apr. 17, 2020), https://www.americanbar.org/groups/business_law/publications/blt/2020/05/hair-discrimination/.
[15] Dove, The CROWN Research Study 2 (2019), https://static1.squarespace.com/static/5edc69fd622c36173f56651f/t/5edeaa2fe5ddef345e087361/1591650865168/Dove_research_brochure2020_FINAL3.pdf.
[16] Id. at 3–4.
[17] Id. at 4.
[18] See Working to Eradicate, supra note 5.
[19] See About—The Official Campaign of the CROWN Act, The CROWN Act, https://www.thecrownact.com/about (last visited Dec. 14, 2020).
[20] See Md. Code Ann., State Gov’t. § 20-101(f)–(g) (2020).
[21] See Reba Letsa, The CROWN: Anti-Hairstyle Discrimination Legislation Protecting Natural Hairstyles in the Workplace, Baker Donelson (Feb. 26, 2020), https://www.bakerdonelson.com/the-crown-anti-hairstyle-discrimination-legislation-protecting-natural-hairstyles-in-the-workplace.
[22] Equal Emp’t Opportunity Comm’n v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1026 (11th Cir. 2016) (citation omitted).
[23] See Letsa, supra note 21.
[24] See S.B. 531, 441st H.D., Reg. Sess. (Md. 2020).
[25] See Working to Eradicate, supra note 5.
[26] See Brad Bennett, CROWN Act Movement Seeks to Protect Black People from Racial Discrimination Based on Hairstyles, S. Poverty L. Ctr. (Apr. 15, 2020), https://www.splcenter.org/news/2020/04/15/crown-act-movement-seeks-protect-black-people-racial-discrimination-based-hairstyles.
[27] See id.
[28] See id.
[29] See generally Reese, supra note 6; Letsa, supra note 21; Arefin, supra note 14.
[30] Equal Emp’t Opportunity Comm’n v. Catastrophe Mgmt. Sols., 138 S. Ct. 2015 (2018); see generally Washington v. Davis, 426 U.S. 229 (1976); see also McCleskey v. Kemp, 481 U.S. 279 (1987).
[31] See Jameelah Nasheed, A Brief History of Black Hair, Politics, and Discrimination, Teen Vogue (Aug. 9, 2019), https://www.teenvogue.com/story/a-brief-history-of-black-hair-politics-and-discrimination.
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