Workplace hair discrimination is a topic that has floated through the media for the past several years. To prohibit discrimination, California has implemented the “Creating a Respectful and Open World for Natural Hair (CROWN) Act.” Specifically, California’s CROWN Act amends California’s Fair Employment and Housing Act (FEHA), an act that functions to prohibit specified discriminatory employment practices, by expanding the definition of race to be “inclusive of traits historically associated with race [such as] hair texture and protective hairstyles”— ultimately banning discrimination against natural black hairstyles. As of August 2022, an additional 17 states and more than 40 municipalities have enacted their own versions of the CROWN Act to prohibit hairstyle discrimination.

CROWN Comes to Tennessee

On July 1, 2022, Tennessee became the first state in the Mid-South to adopt CROWN legislation. Tennessee’s CROWN Act prohibits employers from adopting a policy that does not permit an employee to wear their hair in braids, locs, twists, or another manner that is symbolic of the cultural identification of the employee’s ethnic group or is a physical characteristic of the employee’s ethnic group.

Tennessee’s law, however, does not create a private right of action. Instead, an employee may file a complaint with the Commissioner of Labor and Workforce Development who shall warn the employer of their violation. Furthermore, the law is not applicable to:

1. a public safety employee if it would prevent the employee from performing essential functions of their job requirements during employment; or

2. a policy that an employer must adopt to adhere to common industry safety standards to maintain reasonable safety measures.

What Does This Mean For Employers?

If you have employees in Tennessee (or in a jurisdiction that has passed CROWN legislation), take notice. Although getting a warning for a violation may not sound like much, most employers do not want to attract negative press for discriminating against an employee. To avoid such notoriety and give your employees the full protection of the law, Tennessee employers should consider the following steps:

• Update your grooming and appearance policies. If the policy mentions hairstyles, make sure it makes clear that hair texture and hairstyles particular to racial and ethnic identities are permitted. The Equal Employment Opportunity Commission’s (EEOC) grooming standards may provide further guidance. Additionally, if an employer plans to prohibit certain hairstyles out of safety and health concerns, the employer should strongly consider alternative options. The New York City Commission on Humans Rights advises employers to address health and safety concerns with non-discriminatory measures such as hair nets or hair ties, and to provide alternative safety equipment that can accommodate various hair textures and hairstyles.

• Train management on policy changes. Make sure your supervisors know the new rules and how to handle violations with thoughtfulness.

• Most importantly, make sure to apply your grooming and appearance policies consistently to all employees. There should be another aspect of training for your supervisors, perhaps as a part of a larger program on cultural sensitivity or unconscious biases.

Although a violation of Tennessee’s CROWN Act may only result in a warning, it could open the door to risks under Title VII. For example, if an employer has a policy that bans a particular hairstyle that is prominent to a certain ethnic group, they could face a disparate impact claim under Title VII, which, among other things, prohibits neutral policies that have a more significant impact on a protected class of employees. The EEOC has provided guidance warning employers of such liability in its Compliance Manual on analyzing charges of race and color discrimination under Title VII.

In a working world where companies are struggling to retain employees, employers need to think about policies that are inclusive. To paraphrase the lyrics of one of neo-soul greats, India.Arie, “[employees are] not [their] hair, [employees are] not [their] skin — [they are merely just the hardworking people that work] within.” Tennessee employers, trust us on this one — update your policies.