Over the last few decades, the American legal system has recognized greater protections for minority employees. Alongside this has come a growing understanding of what ‘racism’ really constitutes and why it stems beyond the color of a person’s skin. Courts have also begun to interpret ‘race’ as more than only the color of someone’s skin, but still tie race to those things which a person ‘cannot change’ about themselves. Very recent changes in the law and judicial opinions seem to suggest that ‘race’ may incorporate more than just people’s unchanging physical bodies, but also various characteristics not previously protected under race.
One social change has been gaining traction since 2010, when Chastity C. Jones was denied a job at a call center because of her hair style and eventually lost her Title VII case. In Jones’ case, EEOC v. Catastrophe Management Solutions, her dreadlocks were inexplicably tied to her race, and formed the basis of the discriminatory animus against her. The Court did not find race to cover natural hair, and, so, dismissed her case. This case, and its dismissal, led to a number of legislative bodies enacting ‘CROWN Acts’, explained below, to remedy discrimination against some traits clearly tied to race but not yet recognized, by Courts, as ‘race.’
That social change has led to political activism, and, now, growing political change. The CROWN Act was recently passed by the United States House of Representatives, and is slated to return to the United States Senate. The CROWN Act failed to gain enough votes in the Republican controlled Senate in 2020, but with current Senate split, and despite Vice President Harris’ high likelihood of breaking the tie in favor of supporting the CROWN Act, it is possible, but unclear, that it will be passed into law. President Biden has already shown support for the bill and would likely vote it into law should it survive the Senate.
The Senate lull, however, has not prevented State legislators from moving on similar laws. Most recently, the Massachusetts Senate voted to approve its own version of a CROWN Act. This is not a novel State action, as California created its own CROWN Act in 2019 and about a dozen other States, including New York and New Jersey, followed suit shortly after.
The CROWN Act would be a leap forward for those who experience discrimination because of their natural hair style. Despite the growing subtleties of discrimination, the predominant federal discrimination law, Title VII, has been slow to react to more ‘hidden’ racism. Many federal circuits have stuck to a very textbook definition of what constitutes ‘race,’ imbuing that definition without regard for the complexities of day-to-day life. For example, many circuits have found that race is tied to those characteristics which a person ‘cannot change’ about themselves. Naturally, this creates a complex web of what it would mean to ‘change,’ such as whether the availability of rhinoplasty would eliminate one’s nose as tied to their race, but Courts have found that someone’s natural hair is something they can change and, thus, not ‘race’ for purposes of Title VII.
This may be subject to change, however, as a hair discrimination case is currently in New York federal court, Gurley v. David H. Berg & Associates, and the court seems poised to accept arguments that one’s natural hair may be bound into race for purposes of discrimination under Title VII. The Court dismissed hostile work environment claims but retained the discrimination claims which were formed, in part, by the Plaintiff’s subjugation to hair discrimination, notably, that she was told her afro was “unpolished.” Whether these arguments will remarkably impact this case, and whether the broader arguments about hair discrimination will influence the United States Senate, remains to be seen.
Regardless, if you feel that you have been discriminated against, call one of our attorneys today! .
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