Is Hair a Protected Class?
June 9, 2022
By: Colin A. Walker
Hair is a protected class. A number of states have enacted laws prohibiting discrimination against employees and candidates for employment based on hair and hairstyles historically associated with certain races and ethnicities on the theory that discrimination regarding hairstyles could be a proxy for discrimination based on race, ethnicity, religion or other protected classes. While the new laws often apply to hairstyles associated with African American workers, they do not apply specifically to any one race and provide protection for hair and hairstyles generally.
For example, in 2020, the Colorado Legislature enacted House Bill 2020-1048, the “Creating a Respectful and Open World for Natural Hair Act” (“CROWN”). CROWN amended the Colorado Anti-Discrimination Act (the primary employment discrimination law in Colorado) to add hair and hairstyles, including “braids, locs, twists, tight coils or curls, cornrows, Bantu knots, Afros, and headwraps,” as a protected class. It also protects hair and hairstyles in the education environment. Discrimination against employees and candidates for employment based on hair and hairstyles is now prohibited just like it has been for years regarding race, religion, gender, sexual orientation and other protected classes.
At least thirteen states have enacted similar laws as of publication of this article and legislation is pending in a number of other states. Numerous local governments have also passed such laws. And, the U.S. Congress seems to be getting involved. On March 18, 2022, the House of Representatives passed the Creating a Respectful and Open World for Natural Hair Act. While President Biden supports the bill, to date it has not passed the Senate.
A closely related principle, which could overlap with hair and hairstyle discrimination, is the requirement of an employer to make reasonable accommodations based on an employee’s religious practices. State and federal laws require an employer to make reasonable accommodations regarding an employee’s religious practices as long as the accommodation is not an “undue hardship” on the employer. This concept received national attention some years ago in a case involving Abercrombie and Fitch. A muslin woman sued Abercrombie when it refused to allow her to wear a head scarf while on the job. The case was appealed to the United States Supreme Court and the High Court held that Abercrombie should have accommodated the employee’s desire to wear the head scarf for religious reasons. Similar issues can arise with tattoos, piercings, and clothing. By the same token, some employees wear certain hairstyles for religious reasons and this could require accommodation. States like Colorado make it even clearer—hair and hairstyles are protected even if they do not involve a religious practice.
There is never a dull moment in employment law. And, it’s fascinating! But, it can be tricky for employers. Prudent management will be aware of such laws and work with employment counsel to ensure compliance and address specific issues as they arise.