New Jersey Employment Lawyer Blog
Advocates of a Congressional bill seeking to ban discrimination against natural and protective hairstyles suffered a setback recently when the measure failed to secure the votes it needed in the House of Representatives. Fortunately for workers in New Jersey, this kind of race discrimination is already expressly forbidden as a violation of the New Jersey Law Against Discrimination so, if it happens to you here, you can secure a New Jersey race discrimination lawyer and take action under the LAD.
Measures to make discrimination against natural hairstyles a violation of federal anti-discrimination laws have emerged in each of the last two Congressional sessions. Two years ago, New Jersey Senator Cory Booker proposed the Creating a Respectful and Open World for Natural Hair, or CROWN, Act of 2020.
The bill has not passed the senate and, recently, a similar measure suffered a defeat in the House of Representatives, as well. The house measure, H.R. 2116, was sponsored by New Jersey Rep. Bonnie Watson Coleman. Proponents sought to pass the bill on a “motion to suspend the rules,” so it needed a 2/3 vote. Because representatives voted in support by a margin of only 235-188, it failed.
The federal Equal Employment Opportunity Commission has come out in opposition to hair discrimination. The EEOC has stated that race includes physical and cultural characteristics associated with race, with hairstyle and hair texture among them.
Some federal courts, including a district court in Kansas and the court of appeals over Alabama, Georgia, and Florida, have rejected this interpretation and found that adverse actions by employers because of employees’ hair were not violations of federal law, thus motivating proponents to propose the federal CROWN Act.
New Jersey Banned Hair Discrimination in 2019
For workers here in New Jersey, this state already passed its own CROWN Act that Governor Phil Murphy signed into law three years ago. That act said that “race” includes “traits historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles.” It went on to clarify that “‘protective hair styles’ includes, but is not limited to, such hairstyles as braids, locks, and twists.” As the law says, those three styles are not the only ones covered in terms of anti-discrimination protections. Styles like updos, Bantu knots, and cornrows can also serve as protective hairstyles and can also be the basis of hairstyle discrimination.
Even before Governor Murphy signed the CROWN Act into law, the Division on Civil Rights had already issued guidance when it came to natural and/or protective hairstyles and discrimination. In September 2019, the DCR’s “Guidance on Race Discrimination Based on Hairstyle” expressly said that the LAD forbids employers (and others) in this state from “enforcing grooming or appearance policies that ban, limit, or restrict hairstyles closely associated with Black people, including, but not limited to, twists, braids, cornrows, Afros, locs, Bantu knots, and fades.”
How Hairstyle Discrimination Can Occur
Illegal discrimination when it comes to hair can take place in a few different ways. Clearly, the CROWN Act means that employers cannot establish a policy that says “no locs or cornrows.” These are hairstyles that, even though not worn exclusively by people of color, traditionally are worn predominantly by Black people and are closely associated with Black people and Black culture, so their prohibition generally would represent a violation of the law.
Additionally, a “facially neutral” policy could still violate the law it if is applied disproportionately against Black people. Employers may generally erect policies that ban employees from wearing their hair in a way that is “unprofessional” or “untidy,” but they may not use those neutral policies as a way to discriminate against Black hairstyles. The DCR offered a specific example of this kind of discrimination via the disparate application of a facially neutral policy. In the hypothetical, an employer that took adverse action against “Black people with shoulder-length locs or braids” because “their hairstyle… is not ‘tidy,’” but took no action against “white people with shoulder-length hair,” would probably be in violation of the law, according to the DCR.
As a worker, you want your success or failure to be the result of your work product, not your hair. If you have endured hairstyle discrimination at your job, you may be entitled to relief under the LAD. Reach out to the knowledgeable New Jersey race discrimination attorneys at Phillips & Associates to find out more about what options exist for you. Our attorneys are experienced in handling all kinds of race discrimination cases, and we’re ready to get to work for you. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation.