Ingham County recently banned discrimination based on hair texture and hairstyles. On its face, the change of a county ordinance may seem to be a mere drop in the ocean of laws that can swell into a lawsuit between an employer and its employees. But, on closer look, there are much broader implications.
On March 23, 2021 the Ingham County Board of Commissioners passed Resolution #21, a “Resolution Prohibiting Hairstyle Based Racial Discrimination.” This has been referred to by the media as the “CROWN Act” which is an acronym for “Creating a Respectful and Open Workplace for Natural Hair.” Back in 2004, Ingham County adopted an Equal Employment Opportunity Plan which prohibited discrimination in County employment based upon, among other protected statuses, race. The CROWN Act resolution “declare[d] that the term ‘Race’ or ‘race’ as used in the revised Equal Opportunity Plan shall be defined as being inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles. For purposes of this definition, "protective hairstyles" includes, but is not limited to, such hairstyles as braids, locks, and twists.”
In other words, it was already against County Ordinance to discriminate in County employment based on race. On March 23, 2021 the County said that discrimination based on “race,” in violation of the ordinance, includes discrimination based on hair type and hair style.
From an employment litigator’s standpoint, the March 23rd Resolution is not exactly a ground-shaking change. The at-will employment doctrine says that an employer may hire, fire, promote, or demote for any reason or no reason at all. In order to sue an employer, an employee needs a specific statute that applies to the particular employer that prohibits the specific type of discrimination and allows a private cause of action for violations. For instance, Michigan’s Civil Rights Act prohibits a private employer from discriminating based upon race, sex, age, national origin, religion, height, and weight. The CRA applies to private employers. And, it allows you to file a private suit against them if they violate it. Lawyers that represent employees read through the statutes like a magician’s grimoire for a statute that prohibits, and lets them sue for, an action their client objects to. If there’s a statute on point, they have a case. If not, not so much. Lawyers that represent employers will often review the statutes to make sure they do not specifically prohibit the specific thing their client wants to do. If there’s not, it’s probably okay under at will.
Even after the CROWN Act amendment, there is not likely a viable lawsuit for people who feel they are discriminated against for their hairstyles. The County Equal Employment Opportunity Plan is enforced through internal complaints to Ingham’s Human Resources department. There is no court review if you don’t like the outcome of the complaint. So, if a County employee feels they have been discriminated against for their hair type or hairstyle, they can complain to the County EEO Office. But, they cannot sue in court if they don’t like the outcome. Even if there was a right to private suit, the EEOP only applies to employees of Ingham County. A private business, like a gas station, a bank, a bar, operating in Ingham County could fire people for their hair type or hairstyle to its heart’s content without running afoul of the CROWN Act because it does not apply to private businesses.
The CROWN Act itself is not a new and exciting source of potential employment litigation. But, there are broader implications. The Act is part of a growing, nationwide trend towards prohibiting hair type and hairstyle discrimination. Why would this be? Because often, hairstyle discrimination is really race discrimination. As the Board pointed out, a recent study found that black women are significantly more likely than any other group to be disciplined by their employers for their hairstyle, are more likely to be sent home for their hair, and that 80% of black women feel that they must change their hair to succeed at work.
The CROWN Act is one of many initiatives to address this inequality. California passed its version of the CROWN Act in July 2019 and similar legislation has been adopted in at least seven states and legislation is under consideration in more than twenty other states, as well as in the United States Congress.
In Michigan, State Representative Sarah Anthony of Lansing introduced House Bill 4275 in February 2021 to amend the CRA to include the definition of “race” as “inclusive of traits historically associated with race, including . . . hair texture and protective hairstyles[.]”
As it stands, we could see hair texture and protective hairstyles become a protected status under the CRA, Title VII, and other bodies of law that do apply to private (and public) employers and do permit private suits for violation. We could well see viable litigation based upon hairstyle discrimination. Employers should carefully review their personal grooming and appearance policies to be sure they are not having an adverse impact on their workforce based upon race. And employees should be aware that if they are suffering mistreatment at work because of their hairstyle, they may have a viable claim for discrimination.
Collin H. Nyeholt is an associate attorney with the Law Offices of Casey D. Conklin. He has ten years of experience litigating employment discrimination and civil rights cases in state and federal court.