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Circuit Split Fuels Debate Over Failed Hairstyle Bias Bill

March 2, 2022, 11:00 AM

“Hair must be worn professionally.” This is one example of a workplace policy that, depending on how it’s enforced, could be biased against Black workers.

“It’s a reflection of their own perceptions, if you will, of what constitutes professionalism, or appearance or grooming that they find acceptable,” said Wendy Greene, a law professor at Drexel University who has studied grooming code discrimination.

Greene and other scholars of racial bias say federal legislation is needed to state plainly that unlawful race discrimination isn’t solely referring to adverse employment actions taken based on a person’s skin color. Existing civil rights laws can be interpreted broadly to include things like hair, but competing court rulings have muddied how to handle specific bias against styles like cornrows.

The House voted Feb. 28 on a bill (H.R. 2116) that would legally ban hair discrimination—the bias Greene referenced—but it didn’t have the two-thirds majority needed to pass under expedited procedures. Fifteen Republicans joined House Democrats present to vote in favor of the bill, which was blocked on a vote of 235-188. Its sponsors vowed to bring it up again under regular order requiring a simple majority, in which case it would pass. The measure’s path forward in the Senate, however, is unclear.

BGOV Bill Summary: H.R. 2116, Natural Hair Discrimination

The bill would specifically outlaw bias against hairstyles like locs, cornrows, braids, Bantu knots, and other styles. It would eliminate what’s become a mishmash of state laws against this form of bias in venues like housing and public accommodations. At least 14 states and many other localities have already banned this form of bias, according to the CROWN Coalition, a group backing the legislation nationally.

Republicans believe the legislation is redundant and would outlaw a form of discrimination that’s already prohibited. Rep. Jim Jordan (R-Ohio) took the House floor before the Monday vote to call it “unnecessary and duplicative,” saying federal courts have held for decades that hair discrimination, if associated with a certain race or national origin, may constitute racial discrimination.

The issue continues to be litigated, which lawmakers point to as proof of a need for comprehensive workplace protections that clearly include bias against hair as a form of racial or national origin discrimination. The question remains unsettled because of a federal appellate court split on the issue, according to Greene.

The House bill would “ensure that we don’t have a patchwork of protections against this very systemic form of discrimination,” Greene said.

Circuit Split

The U.S. Court of Appeals for the Seventh Circuit ruled in 1976 that workplace discrimination on the basis of a Black employee’s “Afro hair style” constitutes unlawful race discrimination under Title VII of the 1964 Civil Rights Act.

But the U.S. Court of Appeals for the Eleventh Circuit ruled in 2016 that discrimination on the basis of a Black worker’s dreadlocks didn’t constitute unlawful race discrimination under Title VII because dreadlocks were deemed a “mutable, cultural hairstyle.”

The Eleventh Circuit distinguished between an afro and dreadlocks by saying an afro is an “immutable hair texture” or an “immutable” racial characteristic of African descendants. Therefore, workplace discrimination on the basis of a Black employee’s afro constitutes unlawful race discrimination.

Under that logic, if that same employee styled her hair in locs and experienced discrimination on those grounds, she wouldn’t have an actionable claim of race discrimination under Title VII.

Rep. Bonnie Watson Coleman (D-N.J.), the sponsor of the bill, said in an email that the 1976 Seventh Circuit decision does “not extend to hair texture or other styles that have evolved and grown in popularity since then.”

Jordan disagreed, citing the same decades-old opinion on the House floor. “The problem raised by the Democrats is one solved by enforcing our existing laws, not by making this conduct illegal for a second time,” Jordan said. His office didn’t respond to a request for comment.

Greene said Republicans opposing this bill have been “misinformed of the state of the federal law, and the fact that it is not clear whether or not discrimination on the basis of natural hairstyles constitutes unlawful racial discrimination.”

Workplace Implications

A 2020 study in the peer-reviewed journal Social Psychological and Personality Science found that Black women with afros, locs, braids, cornrows, and other hairstyles were often perceived as being less professional than counterparts with straight hair.

Angela Onwuachi-Willig, a dean at Boston University’s law school, said hair discrimination should already be covered until Title VII, but many people don’t understand that it’s a form of unlawful racial bias. She equated a manager asking an employee to change the texture or structure of their hair to asking a worker to receive a rhinoplasty.

“That’s why it’s important—so that people can be educated, and so that people can be protected from such discrimination,” Onwuachi-Willig said, pointing out that race in the U.S. has historically been defined by many physical characteristics, including hair.

“We’re looking beyond just skin color,” she said.

The U.S. Equal Employment Opportunity Commission, the agency responsible for enforcing federal workplace anti-discrimination laws, includes hair—as well as skin color—as one of several physical characteristics associated with race.

The EEOC in 2006 updated its guidance to clarify that “neutral” hairstyle rules can be enforced in workplaces, as long as they’re applied “evenhandedly.” Title VII “also prohibits employers from applying neutral hairstyle rules more restrictively to hairstyles worn by African Americans,” the guidance said.

Watson-Coleman said current interpretations of civil rights legislation often limit anti-bias protections to skin color, and not hair.

“Hair discrimination is a real and significant issue,” she said. “It remains a source of racial injustice with serious economic consequences for Black people.”

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloombergindustry.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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