Did you know that under federal law, employers can discriminate against Black employees who don natural hairstyles except when they wear afros?
According to Kline School of Law professor Wendy Greene, JD, LLM, an expert in anti-discrimination and civil rights law, employers can freely regulate, ban or prohibit natural hairstyles that African descendants commonly wear except for an afro.
“But, if you twist, loc or braid that afro – then magically it’s not protected under the federal law,” explains Greene. This is because of a discriminatory loophole in one of the first major federal laws prohibiting racial discrimination in America’s workplaces.
Title VII of the Civil Rights Act of 1964 bars employment discrimination on the basis of race. What federal courts have interpreted this prohibition to mean is discrimination on the basis of immutable characteristics: features you are born with, features that one cannot change or features that only Black people possess.
However, federal courts have concluded that an afro is an “immutable, racial characteristic” of Blackness; therefore, discrimination on the basis of an afro constitutes race discrimination. Yet, discrimination on the basis of African descendants’ locs, braids and twists do not violate Title VII because federal courts have deemed these styles “mutable, cultural characteristics.” Since Title VII does not protect against cultural discrimination, employers are free to regulate Black women and men who wear these natural or protective hairstyles—except for an Afro.
According to Greene, this means an employer could force a Black woman, for example, to change her hairstyle if it is styled in any way other than an afro. For over a decade, Greene has worked tirelessly to cure this gap in federal civil rights protection or what she calls a “hair splitting legal distinction” in anti-discrimination law.
Recently, Greene has worked with legislators to draft the Create a Respectful and Open World for Natural Hair Act, known as the CROWN Act: a federal bill that provides a clarifying definition of race which recognizes that natural hair discrimination is racial discrimination. The bill recently passed the U.S. House of Representatives and now moves to the Senate. Similar legislation is gaining traction across the country, with seven states, including New Jersey, already passing similar antidiscrimination laws and Pennsylvania currently debating legislation.
Greene is one of the main authors of the federal bill and has helped draft language for multiple state- level bills. She has commented extensively in media stories about hairstyle discrimination and efforts to ban it. Below she tells the Drexel News Blog about how this bill gained momentum and the necessity of its passage in the Senate.
What is the CROWN Act?
Often our anti-discrimination laws do not define protected classifications like race, color, national origin, or sex. Therefore, it is left to enforcement bodies like our courts to define these terms.
In response to federal courts’ narrow definitions of race, the CROWN Act, which stands for Creating a Respectful and Open World for Natural Hair, provides a clarifying definition of race to be used when enforcing our civil rights laws through characteristics that are commonly associated with race. This law accurately reflects that racial discrimination is often animated by observable characteristics that are associated with racial identity like our skin color, hair texture, hairstyles, dress, or language and that racial discrimination is not limited to discrimination on the basis of “immutable characteristics.”
What are the main goals of the CROWN Act?
The bill aims to rectify nearly 40 years of federal precedent which has permitted lawful race-based discrimination against African descendants who wear their hair as it naturally grows or in protective styles like locs, braids, and twists. African descendants around the world are systematically denied employment opportunities for which they are qualified; suspended, expelled and barred from school; prohibited from participating in school-related activities; deprived of housing; and banned from restaurants and bars when they don their hair in natural or protective hairstyles.
This bill seeks to remove a systemic barrier that African descendants face when attempting to enjoy equal employment and educational opportunities as well as unimpeded access to housing and public accommodations—a barrier which is often shaped by longstanding, racialized stigmas and resulting denigration of our natural hair texture as “unkempt,” “unprofessional,” “unattractive,” and “distracting” and because of its association with Blackness. To that end, this bill also helps chip away a centuries-old, race-based hierarchy that privileges aesthetic norms associated with whiteness, such as straight-hair preferences for women, and the negative associations with characteristics often associated with Blackness like our naturally curly hair texture and hairstyles flowing from it.
If this bill becomes a law, what happens next?
If the federal bill becomes law, it will apply to federal civil rights statutes that govern race and national origin discrimination in housing, public accommodations, employment, schools and other federally funded institutions. Naturally, leaders of organizations and institutions will need to revise their policies and practices to ensure that they are not engaging in discrimination on the basis of natural and protective hairstyles as well as on the basis of other characteristics associated with race and national origin like one’s clothing, language, or accent.
What might stand in this bill’s way?
There is always a possibility that the Senate may not pass the bill or that the President could veto the bill, if passed. There are some policymakers that believe the C.R.O.W.N. Act is duplicative, as they believe federal civil rights statutes provide appropriate legal redress against race-based natural hair discrimination. But they are mistaken; for nearly 40 years, federal courts have repeatedly declared that race-based natural hair discrimination violates Title VII of the 1964 Civil Rights Act only when it involves regulation of an afro and no other natural hairstyles that flow from an afro hair texture.
There are also policymakers who believe that natural hair discrimination is harmless and that the Act infringes too heavily on employer prerogative. However, as we are advocating on behalf of the Act, we are also re-educating not only legislators but also the broader public about the magnitude of race-based natural hair discrimination that African descendants encounter, its prevalence since eras of racial slavery and racial apartheid in this country, and its harms. Moreover, the activism around this bill is really helping organizational leaders to see that compliance with the Act facilitates greater workplace diversity and inclusivity and also aids decision-makers in actualizing non-discriminatory decision-making—the central purpose of our civil rights laws—by focusing on the competencies and skill-sets that flow from a person’s head rather than how one adorns her head.
What kind of difference would this make for Black men and women?
With the passage of this bill, Black women and men will be able to exercise greater levels of freedom, agency and autonomy as it relates to their self-presentation and if they are discriminated against when doing so, the Act affords legal recourse which currently does not exist under federal law.
It is not uncommon in the 21st century, for employers to require Black women to either cut off, cover, or, straighten their naturally unstraightened hair. Many Black women apply toxic chemical relaxants as well as extreme heat to their hair and use wigs and weaves in order to comply with what I call “straight hair expectations or mandates.” These hairstyling techniques can cause temporary and permanent damage to Black women’s scalp and hair and bear strong correlations to their diminished emotional, physical and physiological health. For example, the Perception Institute reports that Black women experience greater levels of pressure to wear their hair straightened and experience higher levels of anxiety about wearing their hair naturally than white women because they are fearful of losing employment opportunities and/or being subjected to workplace harassment. These perceptions are not unfounded, as other studies confirm that Black women who wear natural hairstyles are more likely to be deemed “unprofessional” and as result, they are more likely to be disciplined and denied job interviews by employers than white women donning curly or straight hair, and Black women who wear straightened hairstyles.
The CROWN Act helps to eliminate a precarious predicament that Black women uniquely and commonly encounter, the risk of one’s emotional, economic and physical well-being by altering or covering natural hair texture in order to obtain or maintain a job for which there’re qualified.
Media interested in speaking with Greene, should contact Senior News Manager Emily Storz at els332@drexel.edu or 215-895-2705.