The Wrestling Incident
During an incident on December 19, 2018, a referee required an African American wrestler at Buena Regional High School choose between cutting his dreadlocks or forfeiting his wrestling match. Rather than forfeit the match, the wrestler chose to cut his hair. Because the incident had indicia of being racially motivated, or at least having a racially disparate impact, and allegations of racism by the same referee had previously been made, the New Jersey Division on Civil Rights (DCR) and the New Jersey State Interscholastic Athletic Association (known as NJSIAA, the Association self-regulates high school sports in New Jersey) begin a joint investigation. The NJSIAA eventually suspended the referee for two years.
The New Jersey Division of Civil Rights’ Guidance
The investigation led the DCR, the organization within the Attorney General’s office which enforces New Jersey’s Law Against Discrimination, to issue guidance on interpreting the Law Against Discrimination (the LAD). The LAD prohibits discrimination in employment, places of public accommodation, and other areas, based on a person’s immutable characteristics. This includes both overly discriminatory acts, but also acts or practices which have a racially disparate negative impact.
The Guidance was exhaustively researched, and tracked hair styles and hair textures particular to African Americans, and how these textures and styles have been used as a basis for explicit bias or practices with a disparately negative impact on African Americans. These hair styles include twists, braids, cornrows, Afros, Bantu knots, fades and locs (the DCR explained that it used the term “locs,” rather than “dreadlocks,” because the term “dreadlocks” derives from the word “dreadful,” which was how slave traders described African slaves during the Middle Passage; subsequent New Jersey laws have followed this usage, and we will hereafter in this article).
The DCR explained that:
the LAD’s prohibition on discrimination based on race encompasses discrimination that is ostensibly based on hairstyles that are inextricably intertwined with or closely associated with race. That means, for example, that the LAD generally prohibits employers, housing providers and places of public accommodation (including schools) in New Jersey from enforcing grooming or appearance policies that ban, limit, or restrict hairstyles closely associated with Black people, including, but not limited to, twists, braids, cornrows, Afros, locs, Bantu knots, and fades. A similar analysis applies to discrimination based on hairstyles that are inextricably intertwined with or closely associated with other protected characteristics, such as hairstyles associated with a particular religion.
It also took care to note that this rule did not apply solely to African-Americans or on racial contexts. It cited as specific examples the hair styles or facial hair, and dress requirements for religions such as Orthodox Judaism, Islam and the Sikh religions.
New Jersey Passes the CROWN Act
The New Jersey Legislature thereafter passed the Create a Respectful and Open Workspace for Natural Hair (CROWN) Act, which adopted the DCR’s guidance and expressly made it law. Governor Murphy signed the CROWN Act on December 19, 2019. The operative feature of the CROWN Act was to amend the definitions of the LAD to include such discrimination. First, the CROWN Act amended the definition of “race” to clarify that the term includes “traits historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles.” The CROWN Act then went on to define “Protective hair styles” to include “such hairstyles as braids, locks, and twists.”
What This Means for Employers
The first thing that employers must do is review their rules and policies to ensure that they do not have, implement or enforce grooming standards which ban or limit hair styles that are associated with a particular race, ethnicity or religion. Likewise, the DCR’s guidance makes clear that any appearance policy must be applied evenly, and cannot impact employees based on race. The DCR used an example of a company which had a requirement that employees be groomed “neatly” and professionally.” However, as applied, this had the effect of banning locs, but not hair styles associated with Caucasians. This application would be considered discrimination under the LAD. Customer or client preference cannot justify a policy that would otherwise violate the LAD. Employers should make sure that their handbooks, rules, employee manuals and policies are correctly written, and consistently enforced without regard to race or religion, and without racial or religious impact. Employers should, in this and every situation, document everything.
What This Means for Employees
While this policy rightly evens the playing field for employees of a minority race or religion (and that means both minority in the workplace and in society at large – an employee may be in the majority in society and still be the minority in a particular workplace). However, it does not relieve the employee from the duty to perform the requirements of the job. Performance is essential.
And as in every situation, documentation is important. It is important for an employee to document her performance. Likewise, if the employee believes she is being treated differently, she should do her best to determine the composition of the workforce, and if there are differences in treatment based on race, ethnicity or religion based grooming.
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