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A Heads Up

By Briana Dawkins

 

Effective Oct. 24, Massachusetts joined 17 other states in passing the Creating a Respectful and Open World for Natural Hair (CROWN) Act, which bans discrimination against employees, students, and other individuals on the basis of natural or protective hairstyles historically associated with race.

The act applies to Massachusetts employers as well as all Massachusetts school districts, school committees, public schools, non-sectarian schools, and places of public accommodation. At the federal level, CROWN Act legislation has passed the U.S. House of Representatives and is pending in the U.S. Senate.

The Massachusetts version of the CROWN Act amends the definition of ‘race’ contained in the state’s Fair Employment Practices Act, as well as other Massachusetts laws specifically applicable to schools, to include protection against such discrimination on the basis of traits historically associated with race, including, but not limited to, hair texture, hair type, hair length, and ‘protective styles,’ which include braids, locks, twists, Bantu knots, hair coverings, and other formations.

Briana Dawkins

Briana Dawkins

“To ensure compliance with the CROWN Act, employers and schools may want to consider avoiding language in their grooming or personal appearance policies that categorizes specific hairstyles or textures as ‘unkempt’ or, in the alternative, ‘socially acceptable.’ Such choice of words can create a presumption that some hairstyles or textures are less socially acceptable than others.”

The enactment of the CROWN Act in Massachusetts was founded in an incident that occurred at a Greater Boston charter school. In 2017, two Black 15-year-old sisters, Deanna and Mya Cook, were reprimanded at the Boston-area high school in Massachusetts for wearing braided hair extensions. At the time, the school had a hair and makeup grooming policy that prohibited hair extensions. The Cook sisters faced several hours of detention, were threatened with suspension, and, among other reprimands, were even barred from participating on the school’s sports teams after they refused to take down their protective hairstyles.

Thanks to the tenacity and grace of the Cook sisters, the issue reached a very public audience. The Massachusetts attorney general wrote a letter to the school informing the school that the grooming policy was discriminatory and in violation of state and federal law. The Cook sisters’ case also caught the attention of the American Civil Liberties Union of Massachusetts, as well as the NAACP. Then California state Sen. Holly Mitchell drafted the first CROWN Act legislation in 2019, empowering California to take the lead as the first state to enact this legislation.

Massachusetts Gov. Charlie Baker signed the CROWN Act into Massachusetts law earlier this year. While Massachusetts has not yet been confronted with a suit under the CROWN Act, a violation under the expanded protection may result in liability under the state’s anti-discrimination statutes (which provides for the award of lost wages, emotional distress, punitive damages, and attorney’s fees).

Going forward, the Massachusetts Commission Against Discrimination (MCAD) has been tasked with promulgating rules or issuing guidelines regarding the discrimination protections expanded by the CROWN Act. In addition, the Massachusetts Department of Elementary and Secondary Education (DESE) has been authorized to provide written guidance interpreting the Act. Nonetheless, employers and schools should not wait for the MCAD or DESE guidelines and should amend their equal employment opportunity policies, anti-discrimination policies, and any grooming or other appearance-related policies to ensure that the language appropriately reflects the added protections to race as a protected class.

To ensure compliance with the CROWN Act, employers and schools may want to consider avoiding language in their grooming or personal appearance policies that categorizes specific hairstyles or textures as ‘unkempt’ or, in the alternative, ‘socially acceptable.’ Such choice of words can create a presumption that some hairstyles or textures are less socially acceptable than others.

Instead, employers can enforce grooming requirements specific to a certain position or function of the job that apply to all employees regardless of race, hairstyle, or texture, such as a requirement to keep hair away from the face or pulled back. This same approach can apply to school grooming and uniform policies as well. Employers and schools should make efforts to ensure that the policies are enforced equally to all employees, students, and other individuals rather than selectively.

Employers and schools should also inform their managers, teachers, and other employees regarding policy changes and provide training on how to address potential policy violations. These preventive measures will help to ensure a welcoming environment for all hairstyles, textures, and the like that are historically associated with race in the work and school settings as required by the CROWN Act.

 

Briana Dawkins is an associate in Bulkley Richardson’s Employment and Litigation practices.

Opinion

Opinion

By Mark Adams

 

When it comes to dress codes and attire, companies for years have developed policy standards rooted in conveying a clean, conservative, and/or professional look. In so doing, employees had to conform to a singular vision or appearance. Whether defined expressly or otherwise, hairstyles have been a part of such stereotypes and visions, which has consequently left many minority applicants and/or employees on the sidelines when it came to being hired or promoted into certain positions despite being otherwise qualified to perform those roles.

Enter the CROWN Act legislation. CROWN is short for Creating a Respectful and Open World for Natural Hair and is designed to break down some of the stereotypical barriers that certain minority groups were facing when being considered for employment.

To date, 17 states have adopted CROWN Act legislation, with Massachusetts being the latest to sign such measures into law. Other states include California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Nebraska, Nevada, New Jersey, New Mexico, New York, Oregon, Tennessee, Virginia, and Washington. Federally, Congress has contemplated a CROWN Act measure; this measure has been referred to the Senate for further consideration.

What is its significance? For states that have adopted these measures, it makes it unlawful to discriminate based on “natural or protective hairstyles.” Examples of these hairstyles include hair that is tightly coiled or curled, or worn in locks, cornrows, twists, braids, bantu knots, or afros.

For employers that are operating in a state that has enacted CROWN Act legislation, what should you do?

First, review your company policies to see if there is any express language prohibiting such hairstyles in the workplace. Policies that I have seen in handbooks that I have reviewed where the topic of hairstyles has been addressed have included such policies as dress code, hygiene, personal appearance, and professionalism.

If you are a multi-state employer that operates in states where CROWN Act legislation both has and has not been adopted, be careful with your handbook policy and structure. If your handbook is distributed across all your locations, it may be easier administratively to adjust your policy across the board to ensure compliance. (While, conceivably, another path could be to carve out your dress code or other policies and treat them as state-specific addenda or supplements that coincide with the different state requirements, such a practice may prove to be more cumbersome to sustain over time.)

Then there is the subject of managerial and supervisory actions and practices. For instance, have managers and supervisors chosen not to hire an applicant in the past over concerns about hairstyles? Passed over an employee for a promotion? Is it a topic of conversation addressed in interviews? Has the topic been broached in performance reviews or in disciplinary writeups? If the answer to any of these questions is yes, then further discussion with management is advised to change practices (whether attributable to express or unconscious bias) moving forward.

As CROWN Act legislation continues to get adopted nationwide, companies may need to change their ways and let their hair down. Choosing otherwise could lead to discriminatory consequences and litigation down the road.

 

Mark Adams is director of Compliance at the Employers Assoc. of the NorthEast. This article first appeared on the EANE blog; eane.org

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