Last week the U.S. House of Representatives passed the Creating a Respectful and Open World for Natural Hair Act of 2019, or CROWN Act. If the Senate passes the CROWN Act, then it will head to the President's desk for his signature and become law.
The purpose of the CROWN Act is to expand the federal anti-discrimination laws prohibiting discrimination based on race. One would think that race-based hairstyle discrimination was already covered by the language of Title VII of the Civil Rights Act of 1964. Even the EEOC's Race/Color Discrimination page on its website states,
Race discrimination involves treating someone (an applicant or employee) unfavorably because he/she is of a certain race or because of personal characteristics associated with race (such as hair texture, skin color, or certain facial features). Color discrimination involves treating someone unfavorably because of skin color complexion. (emphasis added)
Race Not Defined
Currently, however, the caselaw states plainly enough that "race" is nowhere defined within the meaning of Title VII. In fact, Supreme Court precedent, as well as precedent from various circuits, states that the protections of the federal equal employment laws prohibit employments actions taken against an employee on the basis of a protected category. These protected categories (Race, Color, Religion, Natural Origin, Ancestry, Sex, Age, and Disability) include characteristics that have been described as immutable, or incapable of change.
The Supreme Court's 1989 Price Waterhouse decision explained that when an employer's decision that was based on a characteristic which the employee could change, i.e. it's mutable, then the lawsuit is held to a higher burden in so much that the Plaintiff is required to show that the mutable characteristic is grounded in an immutable characteristic. In this case Price Waterhouse refused to grant Hopkins partnership based party on her demeanor, a mutable characteristic, because it was too macho for a female; therefore, Hopkins was required to show that this basis was rooted in her sex, an immutable characteristic.
Put differently, the Price Waterhouse plurality made the unremarkable observation that, when an employer makes a decision based on a mutable characteristic (demeanor) that is linked by stereotype (how women should behave) to one of Title VII's protected categories (a person's sex), the decision may be impermissibly based on the protected category, so the attack on the mutable characteristic is legally relevant to the disparate-treatment claim. But a plaintiff must still ground her disparate-treatment claim on one of the protected Title VII categories, which Willingham tells us are immutable.
This brings us to hairstyles and whether the plain language of Title VII currently protects an individual's rights to wear a hairstyle in the workplace that is culturally and physiologically associated with that individual's racial heritage. In EEOC v. Catastrophe Management Solutions, the 11th Circuit explained that the law as written and relevant caselaw stand for the premise that hairstyles, whether race-based or otherwise, are not protected.
For the time being, we are left with Supreme Court precedent explaining that discrimination based on stereotypes is circumstantial evidence of discrimination on the basis of a protected category, and with circuit precedent telling us that protected categories and characteristics must be immutable. (emphasis added)
Thus, the Courts have had plenty of opportunities in which rewrite the law and, time and time again, have refused to impermissibly intrude upon the domain of the Legislative Branch. And, as the 11th Circuit explained, if protecting employees from race-based hairstyle discrimination "reflects the future of Title VII...Congress is the proper entity through which to effect such significant change." Thus, the C.R.O.W.N. is the appropriate vehicle by which to ensure that employees and prospective employees are not treated differently because of their race-based hairstyles.
If you believe you have suffered from discrimination at work and you have questions, contact Anthony Bretz today to find out what options you have available.