Q: Can a dress code, grooming policies, and general hiring and employment practices inadvertently promote race or national origin discrimination?
A: Massachusetts is the latest state to adopt a version of The CROWN (Create a Respectful and Open Workplace for Natural Hair) Act, first adopted by California and New York in 2019. In three short years, a total of 18 states have enacted a version of the law, banning workplace practices and policies that promote discrimination based on the use of natural or protective hairstyles most commonly worn by black women. There also are a number of municipalities with local bans. The prevalence of such legislation highlights how important it is for employers to take the time now to review dress and grooming policies and implement training for decision-making managers in the workplace. Prompt and decisive action now could prevent discrimination complaints in the future that detract from worker productivity and a harmonious work culture.
Employers can still make and enforce dress and grooming policies. The CROWN Act legislation does not prevent employers from creating and enforcing dress and grooming policies. It does, however, bring awareness to the fact some workplace policies may inadvertently result in discrimination. In addition, this type of legislation facilitates the conversation to review such policies with an eye to ensuring legal compliance as well as promoting an inclusive workplace. First, employers want to be sure the policy provisions are connected to the interests of the business. Second, any personal appearance or grooming policies should be inclusive of hair texture or hairstyles connected to racial, ethnic and even religious identity.
The Massachusetts law, like similar legislation, prohibits discrimination on the basis of hair texture or hairstyles associated with race, including but not limited to, natural and protective hairstyles, such as afros, braids, locs and twists. In this regard, you want to avoid any dress code or grooming policy which targets certain hairstyles as unacceptable in the workplace. Such an action could be viewed as a disparate impact on a particular race and result in a discrimination claim.
Employment decisions including hiring, firing and disciplinary action should not reflect personal biases. Having an inclusive dress and grooming policy is only one part of the big picture. In the background of the CROWN Act legislation is the fact everyone is affected by internal biases that can negatively impact employee relations. It is easy to overlook how individual biases or perceptions of professionalism can shape employment decisions in a negative way. Therefore, managers and HR professionals need training to be aware of unconscious bias that may unknowingly creep into employment decisions. Appropriate training would include diversity and sensitivity in the workplace training, harassment and discrimination training and unconscious bias training. Employers can equip managers with how to handle situations when they may be confronted with a sensitive issue surrounding the personal appearance of a candidate for employment or an employee disciplinary matter. It would be a good practice to implement training with managers and HR professionals on a regular basis to promote a conscious awareness of these types of issues and to keep up with the ever-changing landscape of legislation like the CROWN Act.
Despite an employer’s best efforts to prevent discrimination in the workplace, discrimination claims can and probably will happen. Having written policies and procedures that reflect a connection between business interests and business decisions will be an employer’s best line of defense. Even if you are in a state or location that has not enacted a version of the CROWN Act, your business and your employees will benefit from workplace policies and procedures that encourage diversity and inclusivity.
This column is provided by Ogletree Deakins, Atlanta, as part of a partnership with the American Rental Association (ARA) for ARA’s Human Resources Assistance Program. ARA members can receive a single sign on from the ARA webpage to a microsite specific to ARA on the Ogletree Deakins platform; get access to two 30-minute calls with an HR professional per year; access to an FAQ section as well as to Ogletree Deakins’ library of webinars; and access to Ogletree Deakins’ ARA-specific webinars. To learn more, visit ARArental.org/manage-business/hr.