On May 27, 2023, the Creating a Respectful and Open World for Natural Hair (CROWN) Act was signed into law by Governor Greg Abbott in Texas. The Act, set to become effective September 1, 2023, applies to employers, labor unions, employment agencies, public schools, and institutions of higher education. Essentially, the CROWN Act now expressly defines “discrimination because of race or on the basis of race” to include discrimination related to hair texture or protective hairstyle commonly or historically associated with race.
What types of hair texture or style does the Act regulate? The Act, although written neutrally to cover all types of hair texture and style, was written with people of color in mind. This was evident not only from Governor Abbott’s comments during the Act’s signing, but also from the Act’s definition of “protective hairstyle” to specifically “include braids, locks, and twists.” This is a good starting point for legal analysis of the Act as we cannot guess (nor can the legislature for that matter) how expansively Texas courts will construe protective hairstyle when the Act goes into effect. Accordingly, employers should give particular scrutiny to grooming policies and employee handbooks that expressly mentions braids, locks, twists, and similar hairstyles. Moreover, attention should also be given to policies that could have a disparate impact (neutral policies with a disproportionate negative effect on a protected class), particularly on employees of color as they were one of the primary intended beneficiaries of the Act. An obvious example would be policies regarding headwear or gear that employees with certain hairstyles have difficulties wearing. It would be safe practice for employers to expressly state the business necessity motivating such policies in order to mount a better defense of the policy in the event the employer later finds itself defending against disparate impact claims.
How can you identify the protected hairstyle? The short answer at this early stage is that we cannot, and employers should cautiously adopt a broad definition until the courts attempt to figure it out. However, looking at the language, we can ascertain that certain hairstyles should be well outside the scope of protected hairstyle. The statute attaches a condition that the hair texture or style must be “commonly or historically associated with race.” Although this language is open to many interpretations, it should be safe to assume extreme hair colors and other recently developed hairstyles are not commonly or historically associated with any race.
What should you take away from the CROWN Act? Employers should review grooming policies and employee handbooks to make sure they do not list braids, locks, twists, and other hairstyles of easily identifiable racial origins as examples of prohibited hairstyles in the workplace. Employees, especially managers and supervisors, should be trained on the CROWN Act to refrain from commenting on or disparately enforcing policies against certain hairstyles. Any neutral policy with potentially disparate impacts (e.g., head wear or gear requirements) should expressly state the business necessity and importance behind such a policy to build a defense against potential lawsuits. Generally speaking, employers should adopt a broader hair policy until Texas courts or other courts with similar statutes have a chance to define the scope of protective hairstyle.
New legislation, especially when it expands the definition of discrimination, exposes unsuspecting employers and institutions to legal risks of first impression. Employers should be prudent when conducting self-analysis and audits, which includes working with experienced employment law counsel to identify and address any issues while minimizing interruptions to the employer’s business.