By Jocelyn Rimes*
I spent the days leading up to my first day of my summer law clerk position agonizing over how I would do my hair. While still unsure, I eventually decided that I would do a twist-out, sectioning my hair in small twists and untwisting it the next day for defined curls. On the big day I woke up early to give myself extra time in case my hair did not want to cooperate. I considered leaving my hair in the twists, but after consulting with my parents, I decided to unravel them for fear that the twists would not seem professional. Yet, while I liked the way my hair looked after untwisting it, the doubt as to whether my hair looked acceptable continued to fester.
This was not the first time, and it definitely was not the last, that I experienced significant anxiety over whether wearing my natural hair would be considered “acceptable,” or whether it would garner unsolicited comments and stares. As a biracial person who is half Black, I was raised with the mentality that I have to work twice as hard to be successful and earn the same respect that my white peers would get. I spent the majority of my life damaging my hair with chemical relaxers and heat to fit in with my white peers (I grew up in a rural, predominantly white area) and so I wouldn’t be subject to classmates touching my hair without permission. This behavior was further rewarded and reinforced through comments like, “Your hair is so much prettier when it’s straight,” whenever I would flat-iron my hair; and classmates comparing my hair to a sheep.
While I have become a lot more comfortable wearing my hair big and natural or in braids and twists, every time I enter a new legal space (or a professional space in general) I still find myself confronted with “hair anxiety” and notions of what is “acceptable” and “professional.” These are notions that are often synonymous with Eurocentric beauty standards, which, among other things, present straight hair—or hair that tends to grow down—as “professional” while considering afro-textured hair that tends to grow up and out “unkempt” and “unprofessional.” As a result of these entrenched beauty standards and notions of professionalism, research shows that, for Black women, wearing their hair naturally or in traditionally Black hairstyles limits their job opportunities. This discrimination is also not exclusive to the workplace. Students, elementary through high school, also endure punishment for wearing their hair in traditionally Black braid styles and locs. For instance, in 2017 twin high school girls received detention after refusing to remove their braids that school administrators determined violated the school hair policy. Similarly, in 2018 a 6-year old boy was refused school attendance because he wore his hair in locs which, according to the school, violated the dress code.
Thus far, the legal situation regarding hair discrimination, particularly concerning styling hair in braids or locs, is somewhat uncertain given that courts have ruled on both sides of the line. This uncertainty can be traced back to the “immutable characteristic” requirement for racial discrimination cases. For instance, in Rogers v. American Airlines it was held that a policy against female employees wearing braids and cornrows was not a race-based distinction and would only violate Title VII if it had a disparate impact on Black women and was not a business necessity, or if it was applied in a discriminatory way. Additionally, the court in this case also noted that banning afro hairstyles would likely be racially discriminatory because that is the natural state of Black hair (unlike the cornrows that were at issue in this case). Another notable case is the Equal Employment Opportunity Commission’s (EEOC) suit on behalf of Chastity Jones, who had a job offer rescinded after she refused to cut her locs. This case was dismissed by the federal district court (and upheld by the 11th Circuit Court of Appeals) because racial discrimination must be based on an immutable characteristic, and according to the court, hair style does not fall into that category because it can be changed. As Jones’s case illustrates, the EEOC appears to have a broader definition of race and racial discrimination. The EEOC’s Compliance Manual on Race and Color Discrimination allows employers to implement “neutral hairstyle rules,” but it likely prohibits employers from preventing Black employees from wearing their hair in an afro, as that is the natural state of their hair. Additionally, the Compliance Manual states that employers cannot apply “neutral hairstyle rules more restrictively to hairstyles worn by [Black people].”
Yet, despite the apparent reluctance from the courts to extend protection to traditionally Black hairstyles, various states have passed laws prohibiting hairstyle discrimination. California became the first state to pass a law on the issue, the Create a Respectful and Open World for Natural Hair Act (CROWN Act). This legislation went into effect in January 2020 and expands the definition of “race” to include “traits historically associated with race, including, but not limited to, hair texture and protective styles.” It also prohibits facially neutral grooming policies that have a disproportionate impact on Black people, and people of color in general. New York and New Jersey were also among the first states to expand the definition of “race” to include traits associated with race. The New York City Commission on Human Rights adopted guidelines (which were later passed by the state as the CROWN Act) laying out which hairstyles cannot be subject to discrimination; these included “natural hair, treated or untreated hairstyles such as loss, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.” New Jersey’s version of the Act covers “traits historically associated with race, including hair texture, hair type and protective styles.”
Currently several states and various municipalities have enacted a version of the CROWN Act, and many other states currently have similar proposed legislation. The Minnesota House just passed the CROWN Act in February, which functions similarly to other laws by expanding the definition of “race” to include natural and traditionally Black hairstyles. Additionally, the United States House of Representatives also just passed the CROWN Act.
I know these laws will not fix everything. Anti-Black hair sentiments and Eurocentric standards of beauty and professionalism most likely will continue to be pervasive throughout society; and as individuals we will still have to confront these internalized notions as well. Still, these laws provide important protections for Black people in the workplace and school and are, overall, a step in the right direction.
*Jocelyn Rimes, J.D. Candidate, University of Minnesota Law School Class of 2022, JLI Vol. 40 Staff Writer