Many employers have come under fire recently for grooming policies targeting predominantly African American hairstyles, such as dreadlocks. In March, a Texas teen who applied for a part-time job at a Six Flags theme park was told he had to cut his dreadlocks to get hired. Per their dress code policy, Six Flags Over Texas reportedly considered dreadlocks an "extreme hairstyle." The teen's story went viral, and Six Flags soon announced they had changed the company's policy and that they now allow male team members to wear "locks," as long as they are "well-groomed and do not extend past the bottom of the collar." Yet, this story brought to the national forefront this country's long history of discriminatory practices against African Americans based on their natural hair styles. Various states and jurisdictions have reacted accordingly and passed laws banning hair discrimination.

This July, California became the first state to outlaw discrimination based on certain protected hairstyles when it passed the Creating a Respectful and Open Workplace for Natural Hair Act (the CROWN Act), which bans hair discrimination in California by employers and public schools. The new law expands the definition of "race" under California's anti-discrimination laws to include natural hairstyles or "protective hairstyles," including styles commonly referred to as braids, locks and twists. However, the California Legislature made it clear that the list of hairstyles was not meant to be exhaustive. California may be the first statewide ban, but New York City was the first jurisdiction to ban hair discrimination when the New York City Commission on Human Rights passed guidelines declaring the right of individuals to maintain their "natural hair, treated or untreated hairstyles such as locks, cornrows, twists, braids, Bantu knots, fades, Afros, and the right to keep hair in an uncut or untrimmed state." New York City's law imposes a penalty of up to $250,000 on those who harass, demote or fire individuals because of their hair. Not long after New York City passed these guidelines, New York state passed a similar statewide law. Since then, New Jersey, Tennessee, Michigan, Wisconsin, Illinois and other states have proposed legislation aimed at banning discrimination based on hair. In addition, the U.S. Military and Army have also lifted their bans on dreadlocks.

Because hair is inherent to one's race and can be closely associated with racial or ethnic identities, it has become a proxy for racial discrimination, necessitating the need for these recently enacted laws. Historic norms have tied African American hair texture and hairstyles to unprofessionalism and more Eurocentric styles (i.e., straight hair) to ideas of professionalism and the idea that one looks "clean-cut" with straight hair. These new laws are meant to combat the racial stereotype that African American hair texture and hairstyles are unprofessional or improper. In passing the CROWN Act the California Legislature acknowledged the need for laws banning discrimination based on hair by recognizing that people "who do not naturally fall into Eurocentric norms must alter their appearances, sometimes drastically and permanently, in order to be deemed professional" and that dress codes and grooming policies prohibiting natural hairstyles such as "afros, braids, twists, and locks, have a disparate impact on Black individuals." In this way, these new laws are aimed at strengthening already existing anti-discrimination laws across the country in a collective effort toward creating more respectful and open workplaces for all individuals. Yet, like other anti-discrimination laws, there are exceptions for bona fide occupational qualifications, such as for health and safety, but such health and safety rules would have to apply to everyone.

These new laws also serve to highlight the inconsistency from state-to-state with respect to this issue and the need for a national consensus. In a 2017 case, the U.S. Court of Appeals for the  Eleventh Circuit (Alabama, Georgia and Florida) held that employers may enforce grooming policies that prohibit dreadlocks, despite a close cultural association to race. (See Equal Employment Opportunity Commission v. Catastrophe Management Solutions, 876 F. 3d 1273 (11^th Cir. 2017). This case involved an African American woman, named Chastity Jones, who was offered a job as a customer service representative at a call center in Mobile, Alabama. For the interview, Jones wore her hair in short dreadlocks, and was dressed in a business suit. After being offered the job, Jones was told she could not wear her hair in dreadlocks because the hairstyle violated the company's grooming policy, as the company determined dreadlocks "get messy." Jones was asked to wear her hair in a different hairstyle and when she refused the company rescinded the job offer. This case highlights the divide among the states on the issue of hair discrimination. While many states are acknowledging the link between hair and race, and enacting laws aimed at preventing hair discrimination, there are still several states that have explicitly held there are no protections under the federal discrimination laws for hairstyles. The U.S. Supreme Court has not officially weighed in on this issue. However, the high court did decline to hear Jones' case, presumably allowing employment decisions to be based on hairstyles traditionally associated with race in the Eleventh Circuit for the foreseeable future.

Ultimately, since this is an issue on which few courts have spoken and upon which there is no general nationwide legal consensus, employers must be vigilant in taking into account the changing laws. Employers should review their dress code and grooming policies to ensure that they are race-neutral and that they have no disparate impact on African American employees, or on any other protected class. Employers should update (or start to provide) training for their management-level employees to ensure hiring and employment decisions are not being made based on an individual's natural hair texture or a hairstyle historically associated with race—and if there is, identify the qualifying reason to make the employment decision based on hair. Employers may also want to remind their employees about the need for respectfulness in the workplace, and refrain from referring to certain hairstyles as "messy" or "unkempt." The age-old adage of "keep your hands to yourself" is a good reminder to employees too, to respect personal space and not touch another person's hair (or any other part of his or her body) without permission. Above all, employers should strive to create safe and respectful workplaces for their employees, and that means ensuring all employees feel respected and are treated with dignity.

Autumn L. Moore, an associate at Clark Hill, focuses her practice on resolving labor and employment matters for employers in state and federal courts, arbitration and government agency hearings regarding wrongful termination, FEHA-related harassment and discrimination, whistleblower actions, PAGA representative actions, retaliation, wage and hour, and failure to provide leave actions.