Advice for Employers: Quit Commenting on Employees’ Hair

A long-overlooked form of racial discrimination relates to how employers address the “professional” appearance of employees and enforce potentially discriminatory grooming and appearance policies.  In the past, courts have not considered hair textures and styles as immutable characteristics protected by federal and state anti-discrimination laws.  Employers banning employees from wearing or commenting on employees’ natural and protective hair textures and styles, however, is becoming recognized as race-based discrimination across the country.  

Since 2019, 14 states in total have enacted CROWN (Creating a Respectful and Open World for Natural Hair) Acts, which prohibit race-based hair discrimination in the workplace.  As recently as 2021, bills have been introduced at the federal level to include race-based hair discrimination under Title VII of the Civil Rights Act of 1964.  Locally, employers should be aware that the District of Columbia, Maryland, and Virginia have each enacted laws prohibiting appearance-related or race-based hair discrimination.

• DC employers are prohibited from discriminating against employees on the basis of actual or perceived “personal appearance,” which includes hair styles and beards.

• Maryland employers are prohibited from discriminating against employees because of their traits associated with race, including hair texture, afro hairstyles, and protective hairstyles (e.g., braids, twists, and locs).

• Virginia employers are prohibited from discriminating against employees because of traits historically associated with race, including hair texture, hair type, and protective hair styles (e.g., braids, twists, and locs).

Employment handbooks and policies may address employee grooming and appearance, but they must apply to all employees equitably, otherwise there is potential for a disparate impact on the workforce and discrimination claims under state laws.  If you need assistance with reviewing or rewording such policies’ language, do not hesitate to contact Lipp Law today.