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Informed Citizens

are Better Citizens

by Suzi Morales

Chances are that your school has a dress code or other rules to make sure class isn’t disrupted by what students are wearing or by their appearance. By law, such appearance standards in schools or the workplace must be neutral and not single out a particular racial, ethnic or religious group.

For more than half a century, U.S. law has prohibited discrimination on the basis of race in settings like schools and workplaces. However, there are arguments that current law doesn’t adequately address “hair discrimination,” which disproportionately discriminates against African Americans. Since 2019, some states have passed laws—called CROWN Acts, which stands for Creating a Respectful and Open World for Natural Hair—to specifically address hair discrimination. Federal legislation has been proposed as well, but so far has not been passed into law.

Rooted in the past

To understand how hair discrimination affects African Americans, you need to understand what hair means to that community. African tribal members wore elaborate hairstyles that designated a lot about a person, including their social and marital status, as well as their occupation.

“Hair was almost like your Social Security number. It could tell everything about you,” Ayana Byrd, a journalist and co-author of Hair Story: Untangling the Roots of Black Hair in America, told Glamour magazine.

During the Transatlantic slave trade, these tribal members were captured and brought to the colonies against their will. “One of the first things that happened when people were put on slave ships was that their hair was shaved,” Byrd said. “It was a really visual, immediate symbolic way of erasing someone’s identity.”

Byrd also points out that maintaining Black natural hair, a term coined in the 1960s and 70s, is difficult and time-consuming. The newly enslaved had no tools with which to care for their hair, resorting to bacon grease or butter as moisturizers. Many also relied on head scarves to cover their hair, protecting it from the harsh sun. Under the scarves, their hair was often in a braided style such as cornrows. Even after emancipation, many freed slaves tried to straighten their hair in an effort to assimilate. Straightening natural Black hair can be costly and dangerous even today as it involves harsh chemicals. The newly freed slaves sometimes used lye mixed with potato in an effort to obtain what was considered “good hair,” which at the time meant straight hair.

What is hair discrimination?

According to Corinn Jackson, a Seattle attorney who advises national employers on compliance with various state CROWN Acts, many businesses and schools have rules that dictate aspects of appearance like hair, uniforms and other clothing. Ideally, these rules should directly relate to the way the school or business operates. For example, a requirement that food service workers wear hair nets addresses food safety concerns.

Jackson says problems arise when policies meant to apply to everyone are disproportionately applied to African Americans. For example, a policy could require employees to keep a “neat appearance.” As interpreted, however, hairstyles like Afros haven’t been found to be “neat.” In this way, hairstyles often worn by Black employees, such as Afros and dreadlocks, haven’t been found to comply with some school and employer appearance policies. Students and employees of other racial and ethnic backgrounds are not affected to the same extent.

According to a Dove research study, Black women bear the brunt of hair discrimination in the workplace. “Black women’s hair is three times more likely to be perceived as unprofessional,” the study revealed. In addition, Black women were 80% more likely to be required to alter their hair (i.e., straighten it) to fit in at work, and one and half times more likely, compared to their white counterparts, to be sent home from their workplace because of their hair.

Legal background

You may be thinking, isn’t discrimination based on race illegal? The Civil Rights Act of 1964, passed by Congress during the civil rights movement, banned discrimination on the basis of race in places of public accommodation (i.e., restaurants, hotels, public transportation), employment, and schools.

The law, however, leaves room for interpretation of whether a particular policy discriminates—against employees or students—based on race. Another question not addressed by the Act is whether certain hairstyles are an indication of race.

Jackson notes that the issue becomes more complicated when courts draw distinctions between aspects of Black hair like texture, which is considered to be immutable [not able to be changed] while certain styles like cornrows and braids were considered to be mutable [able to be changed]. Something that is mutable, some courts have found, is the choice of the individual and not an indication of race. The problem with this distinction, Jackson says, is that many of these styles, including dreadlocks, braids and cornrows, —often called protective hairstyles—keep Black hair healthy. Even though a style may be worn as part of cultural identity or to protect certain textures of hair from breakage, courts have distinguished between mutable characteristics like hairstyles and immutable characteristics like skin color.

The U.S. Equal Employment Opportunity Commission (EEOC) provided guidance on hair discrimination, stating that, “Title VII [of the Civil Rights Act of 1964] also prohibits employers from applying neutral hairstyle rules more restrictively to hairstyles worn by African Americans.” Although the EEOC has stated that hair discrimination like this is prohibited under Title VII, such statements are not binding upon courts. In addition, they do not address hair discrimination in schools.

How courts have ruled

One of the first legal challenges to take on hair discrimination was brought in 1981 by Renee Rogers, a ticket agent at American Airlines. Rogers, who wore her hair in cornrows, was forced to put her hair in a bun while at work and then cover it with a hairpiece, because her employer prohibited braided hairstyles. Rogers sued American Airlines in federal court, claiming that the requirement was uncomfortable, and that her hairstyle was reflective of her African heritage. In her complaint, Rogers contended her hairstyle “has been, historically, a fashion and style adopted by Black American women, reflective of the cultural, historical essence of the Black woman in American society.”

In Rogers v. American Airlines, a federal district judge in New York dismissed Rogers’ claim of racial discrimination, ruling that her hairstyle was a mutable characteristic, and she had the option of quitting her job. In addition, there was an alternative provided to Rogers in the form of the hairpiece. The judge also rejected the idea that cornrows were associated with African Americans and indicated his belief that Rogers chose the style to emulate Bo Derek, a white actress who adopted the hairstyle for her role in the movie 10, which had been released two years prior to the judge’s ruling.

In another hair discrimination case, the EEOC filed a lawsuit in 2013 on behalf of Chastity Jones, an Alabama woman who wore her hair in dreadlocks. Jones was offered a job at Catastrophe Management Solutions as a customer service representative but was informed that her hairstyle violated the company’s grooming policy, and she would need to cut them. When Jones refused, the job offer was taken back.

In EEOC v. Catastrophe Management Solutions, a federal district court judge in Alabama dismissed the lawsuit on much the same grounds as in the Rogers case, saying that racial discrimination must show bias on traits that a person cannot change, like skin color. The court ruled that hairstyles don’t fit into that category. In an appeal, the 11th Circuit Court of Appeals upheld that ruling in 2016.

With the help of the NAACP’s Legal Defense Fund (LDF), Jones appealed the decision to the U.S. Supreme Court. In its petition to the Court, LDF lawyers said, “Black women who wish to succeed in the workplace feel compelled to undertake costly, time-consuming, and harsh measures to conform their natural hair to a stereotyped look of professionalism that mimics the appearance of white women’s hair.”

In May 2018, the U.S. Supreme Court declined to hear the case, letting the lower court ruling stand.

Essentially, these cases came to the same conclusion that there was no association between hair and race discrimination because hair is a changeable or mutable characteristic. That is why proponents of CROWN Acts say passing legislation at the state and federal level is crucial

New Jersey’s CROWN Act

California was the first to pass its CROWN Act in 2019. The law specifically bans hair discrimination in the workplaces and schools. Since then, 13 states, as well as 29 municipalities, have passed laws prohibiting hair discrimination, notes Jackson.

In December 2019, the Garden State became the third state to pass a CROWN Act, which is similar to laws passed in other states, notes Jackson. According to a release issued by the Governor’s Office, New Jersey’s law “clarifies that prohibited race discrimination includes discrimination on the basis of ‘traits historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles.’”

New Jersey’s law passed exactly a year to the day that a viral video showing Andrew Johnson, a Black wrestler from Buena Regional High School in Atlantic County, being forced to cut his dreadlocks in order to compete in a championship match. Johnson was given the choice of cutting his dreadlocks or forfeiting the match.

Even before New Jersey’s CROWN Act was passed, the Division on Civil Rights of the Office of the Attorney General of New Jersey issued a statement in September 2019 that the state’s anti-discrimination law “generally prohibits employers, housing providers and places of public accommodation (including schools) in New Jersey from enforcing grooming or appearance policies that ban, limit, or restrict hairstyles closely associated with Black people, including, but not limited to, twists, braids, cornrows, Afros, locs, Bantu knots, and fades.”

A federal CROWN Act

While states continue to pass CROWN Acts, federal legislation was introduced in the U.S. Senate by Senator Cory Booker of New Jersey and in the House of Representatives by New Jersey Representative Bonnie Watson Coleman in the spring of 2021. In March 2022, the House passed the CROWN Act in a 235-189 vote. During debate on the House floor, several representatives criticized the necessity of the bill and claimed the House had more pressing issues to focus on.

Representative Al Green of Texas called it a “kitchen table issue in Black households. Because when Johnny comes home and he’s been fired because of his hair, that’s a kitchen table issue. That’s unemployment…So we have a duty and obligation to do what we are doing.”

At press time, the CROWN Act is still awaiting consideration in the Senate where it would need 60 votes to pass, though a representative from Senator Booker’s office anticipates a future vote that could require only a simple majority. If passed, a federal CROWN Act would become law in all 50 states, providing uniform protections for African Americans.

“Discrimination against Black hair is discrimination against Black people. Implicit and explicit biases against natural hair are deeply ingrained in workplace norms and society at large and continue the legacy of dehumanizing Black people,” Senator Booker said in a press statement. “This is a violation of our civil rights, and it happens every day across the country. No one should be harassed, punished, or fired for the beautiful hairstyles that are true to themselves and their cultural heritage.”

Discussion Questions

  1. After reading the article, what is your understanding of the connection between hair discrimination and slavery?
  2. The article references two discrimination cases where courts concluded “no association between hair and race discrimination exists because hair is a changeable or mutable characteristic.” Do you agree or disagree with the courts? Is there a connection between racial identity and certain hairstyles? Explain your answer.
  3. The article mentions the choice that Andrew Johnson had to make of either cutting his dreadlocks or forfeiting his wrestling match. What do you think of his decision? Have you ever faced a difficult decision? What did you do? Would you do anything differently?
  4. Read the sidebar on swim caps below. What do you think about the racial disparities in drowning statistics and its connection to African Americans being denied access to public swimming pools after the Civil Rights Act of 1964 was passed? Explain your answer.

Glossary Words
— a complaint to a higher court regarding the decision of a lower court.
assimilateto resemble or liken; absorb into a culture.
disproportionateout of proportion; to large or too small in comparison with something else.
emancipationthe release from slavery.
legislationlaws proposed by a legislative body.
segregationthe policy of separating people from society by race or social class.
upheldsupported; kept the same.

This article originally appeared in the spring 2022 issue of Respect, the NJSBF’s diversity newsletter.

SIDEBAR: Swimming in Controversy

Just before the Tokyo Olympics, held in the summer of 2021, Black hairstyles were again in the spotlight. A swim cap produced by Soul Cap, a British company that specializes in larger swim caps to accommodate thicker and curlier hair, specifically Black hairstyles, was banned from Olympic competition by the International Swimming Federation (FINA).

FINA said the rationale for the ban was that “athletes competing at the international events never used, neither require to use, caps of such size and configuration” and that swim caps from Soul Cap do not follow “the natural form of the head.” FINA also speculated whether the cap created an advantage by “disrupting the flow of water;” however, because it is a bigger cap, many swimmers say that it could be a competitive disadvantage in the pool. Soul Cap’s product is designed with extra room at the crown of the head to accommodate natural hairstyles such as braids, dreadlocks and Afros.

The founders of Soul Cap told National Public Radio, “We hoped to further our work for diversity in swimming by having our swim caps certified for competition, so swimmers at any level don’t have to choose between the sport they love and their hair.”

Backlash in the pool

The backlash against FINA was swift, with many Black swimmers calling for it to reconsider its decision.

“We want to be included, all we’re asking for is to have a piece of equipment that has been designed to cater to the issue of our hair, which is a significant barrier to participation in aquatics as a whole,” Danielle Obe, the chair and founder of the Black Swimming Association in Great Britain, told The New York Times.

Due to the backlash of its decision, FINA’s governing body agreed to reconsider its decision. Eventually, it reaffirmed the ban just days before the Olympics began in July 2021.

After FINA reaffirmed the ban, the Women’s Sports Foundation issued a statement, saying: “Banning the Soul Cap and other caps that cater to natural Black hair from the elite competition is unacceptable and will continue to deter athletes with natural hair from entering or advancing in the sport.”

Not just an issue of competition

Swimming is a sport that is lacking in Black participation. But swimming is more than just a sport, it’s a life skill—one that Black children in America lack.

Lia Neal, a two-time Olympic medalist and only the second Black female swimmer to make the U.S. Olympic team, told The New York Times, “This is so much bigger than banning a type of cap.”

During the era of Jim Crow laws, passed between 1877 to 1964, which legalized segregation in the United States, many African Americans were denied entrance to public pools. In 2020, a study published in the International Journal of Aquatic Research and Education linked “systemic exclusion from public pools” to the fact that Black youth are 2.6 times more likely to die from drowning than white children. According to the USA Swimming Foundation, 64% of Black children don’t know how to swim, compared to 40% of white children.

Though it was too late for the Olympics, FINA said it was “fully aware of the cultural issues that Soul Cap has raised, and we are reviewing the process.” FINA encouraged Soul Cap to reapply next year. — Jodi L. Miller