New Jersey Governor Phil Murphy recently signed legislation under the New Jersey Law Against Discrimination expanding the definition of “race” to cover “traits historically associated with race,” including hair texture, hair type, and hairstyle. The Create a Respectful and Open Workspace for Natural Hair Act was passed in direct response to a 2018 incident where a high school wrestler in Atlantic County, New Jersey, was forced to cut off his dreadlocks in order to compete in a wrestling match.
New Jersey became the third state to ban hair discrimination on December 19, 2019. Governor Phil Murphy signed the Create a Respectful and Open Workspace for Natural Hair Act (Crown Act) just days after the New Jersey Senate approved the legislation (Senate No. 3945) by a sweeping margin of 38–1–1. The act establishes that discrimination on the bases of hair texture, type, or style constitutes unlawful race discrimination in New Jersey.
The Crown Act amends the New Jersey Law Against Discrimination (NJLAD), which bars employers from discriminating against individuals on the basis of, among other protected categories, race. N.J. Stat. Ann. § 10:5-12(a). Specifically, the Crown Act expands the definition of “race” under the NJLAD by adding the following two provisions:
According to the New Jersey Governor’s Office, “This change is intended to remove any confusion or ambiguity over the scope of the LAD and its applicability to race discrimination predicated on such traits.” Indeed, the Office of the Governor characterizes the Crown Act as “clarify[ing] and confirm[ing]”—not expanding—the scope of the NJLAD. However framed, the Crown Act leaves no doubt that employers in New Jersey cannot discriminate on the basis of an employee’s hair. The inclusion of “hair type” presumably covers, in addition to hair texture and hairstyle, hair color (though not enumerated in the statute). Additionally, the hairstyles protected under the law are inclusive of, but not per se limited to, “braids, locks and twists.” The legislation’s bar on hair discrimination is comprehensive.
California (Senate Bill No. 188) and New York (Senate Bill No. 6209) passed similar hair discrimination laws in 2019. New Jersey’s Crown Act, which is modeled after those states’ laws, became effective immediately upon passage.
In announcing the law’s passage, the Office of the Governor said that “[t]he law was introduced after [a high school wrestler] was forced to cut off his dreadlocks in order to compete in a match on December 19, 2018—exactly one year ago.” Governor Murphy further declared, “No one should be made to feel uncomfortable or be discriminated against because of their natural hair." Likewise, Senator Sandra B. Cunningham, a primary sponsor of the bill, made plain that the legislation is intended bar hair discrimination, stating: “It is unacceptable that someone could be dismissed from school or denied employment because they wear their hair exactly how it grows, but that has been the reality for many black and brown individuals. Today, here in New Jersey, we've changed that.”
While the Crown Act’s prohibition on hair discrimination is clear, what remains uncertain is whether the law captures, or overshoots, the legislative intent. Indeed, while the purpose of the Crown Act concerns hair discrimination, the text of the law suggests that the Crown Act may extend well beyond hair.
The Crown Act expands the definition of “race” to be “inclusive of traits historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles.” The law on its face, therefore, is not limited to hair discrimination. Hair is secondary to—and, in fact, only an example of—the main thrust of the statutory language, which bars discrimination based on “traits historically associated with race.” The question naturally arises as to what else constitutes “traits historically associated with race” (aside from hair). The Crown Act raises, but does not answer, this important question. Nor does the legislation set forth any criteria, standard, test, or even guidelines for determining what else qualifies as “traits historically associated with race.” The additional categories of physical appearance that constitute “traits historically associated with race” go undefined and unenumerated in the Crown Act. For example, it is unclear whether the statute covers hats or hairnets. There is a strong argument that headwear of any kind, even if included as part of an employee’s uniform, is not covered because hats and hairnets are distinct from hair itself, and only “hair” is enumerated under the statute. Yet headwear worn to cover hair braids or locks could conceivably constitute a “trait historically associated with race” and thus be protected under the NJLAD. The boundaries of the Crown Act are elusive.
Thus, while the impetus of the bill is clear and commendable, its implementation may be problematic. The drafting of the legislation leaves questions unanswered and, in turn, will oblige the courts to determine what traits, if any (aside from hair), are “historically associated with race.” At a minimum, the Crown Act paves an avenue to allege race discrimination on facts that have absolutely nothing to do with hair. Such claims, though supported by the statute’s text, appear inconsistent with the legislative intent of the Crown Act.
Employers and practitioners are left to wait and see how the judiciary will interpret and define the scope of race discrimination claims following passage of the Crown Act. The first few cases litigated under the Crown Act could meaningfully limit—or expand—the legislation’s scope.
While that much is uncertain, what remains known is that, in New Jersey, employers should avoid basing employment decisions on an individual’s hair. Accordingly, New Jersey employers would be wise to review their employee handbooks, policies, and procedures and closely scrutinize any limitations restricting how employees may fashion their hair. “Hair,” under the statute, means hair texture, hair type, and hairstyle, including “braids, locks, and twists.” Employers may seek to amend or eliminate dress codes that limit how an employee may style his or her hair. Additionally, employers should carefully review any grooming policies that regulate facial hair, which, as a “hair type,” is arguably covered by the Crown Act. Indeed, internal policies that, for example, require workers to be “clean shaven” could now evidence unlawful discrimination in New Jersey. Employers may argue that grooming standards and dress code restrictions are necessary for safety reasons and/or to comply with applicable health code requirements.
At a minimum, employers in New Jersey should consider revising their handbooks to, as the Crown Act commands, affirmatively bar workplace discrimination on the bases of “traits historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles.”
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
August W. Heckman III