Natural Hair, Don't Care: New Jersey Bans Hair-Based Discrimination

On December 19, 2019, Governor Phil Murphy signed an amendment to the New Jersey Law Against Discrimination (NJLAD) banning discrimination against a person’s hairstyle or texture. The amendment is designated as the Create a Respectful and Open Workspace for Natural Hair Act, or the CROWN Act. While the NJLAD already bans discrimination on the basis of race and ethnicity, the amendment makes clear that the definition of “race” is inclusive of traits historically associated with race, including hair texture, hair type, and protective hairstyles. The statute specifically cites braids, locks, and twists as protected hairstyles, but also notes that the law is not limited to protecting only those hairstyles and other hairstyles may fall under the law’s protection as well. The CROWN Act is effective immediately and applies not only to the workplace but also schools and places of public accommodation.

Employers will also be subject to the remedies available under the NJLAD which include monetary penalties in an amount not to exceed $10,000 for a first violation, $25,000 for a second violation within 5 years, and up to $50,000 for a third and subsequent violations within 7 years.

NJ DCR Guidance

The Crown Act codifies portions of enforcement guidance issued in September 2019 by the New Jersey Division of Civil Rights (DCR). The DCR’s guidance advised that NJLAD’s ban on discrimination encompasses hairstyles that are inextricably intertwined with or closely associated with other protected characteristics, such as hairstyles associated with a particular religion. The DCR also cautioned that employers may not enforce grooming or appearance policies that ban, limit, or restrict hair styled into twists, braids, cornrows, Afros, locs, Bantu knots, fades, or other hairstyles closely associated with Black racial, cultural, and ethnic identity. Moreover, any policy specifically singling out such a hairstyle will generally constitute direct evidence of disparate treatment under the NJLAD and unlawful discrimination on the basis of race.

Proposed Federal Legislation

On December 5, 2019, United States Senator Cory Booker introduced a federal analog of the law, called the “Create a Respectful and Open World for Natural Hair” Act. In a press release for the proposed federal CROWN Act, Booker stated, “discrimination against black hair is discrimination against black people.”

Bottom Line

New Jersey is the third state this year following California and New York to explicitly ban discrimination based on a person’s hairstyle or texture. Some cities, including New York City, have already enacted bans on hair-based discrimination. Other states and cities are considering enacting similar legislation, and employers should be aware of this growing trend.

Employers must review their Employee Handbooks and dress code and grooming policies to ensure compliance with the new law to ensure they do not target hairstyles traditionally associated with persons of a particular race or ethnicity. In addition, Supervisors/Managers should also be trained on the new ban on hair-based discrimination.

Employers should also review the DCR’s “Guidance on Race Discrimination Based on Hairstyle,” released in September 2019, for insights on how the DCR and New Jersey courts may enforce the CROWN Act. The DCR has cautioned that requiring employees to maintain a “professional,” “neat,” or “tidy” appearance will violate the NJLAD if they are discriminatorily applied or selectively enforced on the basis of race and/or ethnicity. Moreover, grooming policies with health and safety concerns must be “rooted in objective, factual evidence—not generalized assumptions—that the hairstyle in question would actually present a materially enhanced risk of harm to the wearer or to others.”

For more information regarding the new law and how to implement workplace grooming and dress code policies to comply with the new law, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Counseling & Compliance Practice Group, or at 973-533-0777.