With the newly signed CROWN Act banning race-based hair discrimination in the workplace and other areas of public accommodation, New Jersey employment lawyers say employers must take stock of existing grooming policies.
They say the New Jersey bill, known as the “Create a Respectful and Open Workspace for Natural Hair Act,” or CROWN Act, that Gov. Phil Murphy signed into law on Dec. 19, should encourage employers to be more cautious when it comes to grooming policies, or at least reexamine existing rules to ensure they are applied across the board fairly, lawyers say.
Peter T. Shapiro partner with Lewis Brisbois Bisgaard & Smith.“First, employers have to go over their employee handbooks and policies, and make sure they are uniform policies … and make sure that nothing in there runs afoul of the law,” said Peter Shapiro, a partner at Lewis Brisbois Bisgaard & Smith’s New York and Newark offices and a member of the firm’s labor and employment practice, among others.
“An employee might say a particular policy is discriminatory to them, or it’s applied in a way that it’s discriminatory,” added Shapiro. “For example, if the employer doesn’t apply its policies in an evenhanded manner—such as with hair—it could be a problem.”
For example, Shapiro said, if a Caucasian woman is given the option by the employer to wear her hair in a ponytail, but an African American woman is told she has to do something more or is required to keep it in a ponytail, that may be viewed as discriminatory.
“It’s not just the [grooming] policy but how it’s applied,” Shapiro said. “HR should tell managers to apply it evenhandedly and not have a different standard and rules for different sets of people.”
Following similar legislation that became law in California last summer, New Jersey’s CROWN Act, which took effect immediately on Murphy’s signature, prohibits discrimination on the basis of hairstyle, type or texture under the New Jersey Law Against Discrimination. It amends the LAD so the term “race” includes traits historically associated with race. These traits include, but are not be limited to, hair texture, hair type and protective hairstyles such as braids, locks and twists. It also includes Afros.
The legislation was spurred largely by the nationally reported case of an Atlantic County high school wrestler—Buena Regional High School junior Andrew Johnson—who was forced into an on-the-spot decision to either shave his dreadlocks or forfeit a December 2018 match by then-referee Alan Maloney. Johnson ultimately won the match but had his hair cut in the gymnasium in front of spectators. His treatment brought the issue to the forefront in New Jersey.
Three days after it passed through the Legislature with heavy support, Murphy signed S-3945/A
NJ State Sen. Shirley K. Turner (D)-5564 into law. The new law applies not just in an employment context, but with all forms of prohibitive discrimination under the LAD—at work, in housing, in schools and in other places of public accommodation.
“I think it will have a positive impact,” said Sen. Shirley Turner, D-Mercer, one of the Senate bill’s chief sponsors. “Whether you are in the workplace or school environment, no one should be discriminated against because of how they wear their hair and everyone should be treated the same. And African American men and women should not be discriminated against for wanting to wear their hair naturally and embrace their culture.”
Jennifer O’Neill, employment law and litigation counsel in the Hackensack office of Phillips Nizer, said a top-down review of current employee policies is not only wise, but warranted to ensure employers are complying with the new law.
Jennifer O’Neill, Phillips Nizer.“It is important for New Jersey employers to be aware of the new CROWN Law and ensure that they are in compliance, which means amending relevant policies and procedures and training staff,” O’Neill said in an email. “It is also a reminder for New Jersey employers to revisit their overall compliance with state and federal employment laws and anti-discrimination laws.”
James Boyan III, a partner with the employment law practice at Pashman Stein Walder Hayden in Hackensack, said “policies that employers believed were neutral as to race because they applied to all employees easily in the past, need to be double-checked to see if they have a disparate effect on a certain race.”
For example, Boyan said if an employer has a policy banning dreadlocks for all races that wasn’t a problem before, now it could be, because the new law states that dreadlocks have historically been associated with a certain race.
Additional training for staff, the attorneys said, could go a long way toward educating them about what constitutes discriminatory behavior and what doesn’t regarding hair.
“It should be something that employers may want to add—anti-discrimination or anti-
James Boyan, Pashman Stein Walder Hayden.harassment training—to make them aware that making comments about certain people’s hairstyles could be discriminatory,” Boyan said.
“Where one person may find it welcome conduct, someone else may find it inappropriate and feel as if they are being singled out because of the difference in their hairstyle,” added Boyan. “Employers need to tread lightly and advise employees to be sensitive to other’s feelings in that respect.”
Boyan and Shapiro also foresee a potential shift in hiring practices because of the CROWN Act.
“It’s hard to know what type of impact these types of [grooming] policies have had in the past,” Boyan said. “Some of them embraced looking a specific way, and that hairstyles of European descent were viewed as acceptable.”
“The new law is making it clear there is no one type of hairstyle that is viewed as acceptable in the workplace,” Boyan said. “The change in the law could open employment positions where people were excluded based on their hairstyle or type of hair.”
“There is enough anecdotal evidence to suggest that [some] types of policies are to weed out African Americans in the workplace or subject them to unfair standards based on racist preconceptions,” Shapiro said. “So this new law was called for as protection.”
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New Hair Discrimination Law Requires Reexamining Workplace Policies, Employment Attorneys Say | New Jersey Law Journal - Law.com
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