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On Saturday, May 17, 2023, Texas Governor Greg Abbott signed House Bill 567, a new law banning race-based hair discrimination in Texas schools, housing and workplaces. Texas thus joins twenty other states which have enacted similar laws, commonly referred to as Crown Acts. The Texas law is effective September 1, 2023.
The recent promulgation of state Crown Acts is in response to conflicting legal rulings as to whether discrimination on the basis of hairstyles commonly or historically associated with people of African descent violates existing federal law, including Title VII of the Civil Rights Act of 1964 (“Title VII”), the Civil Rights Act of 1866, and the Fair Housing Act.
These conflicting opinions were evident in the December 2017 en banc decision of the Eleventh Circuit in EEOC v. Catastrophic Management Solutions., a Title VII case. The employer had a policy of refusing employment to anyone, black or white, who used an “excessive hairstyle”, a category that included dreadlocks. Suit was brought by an African-American female who had an employment offer rescinded after refusing to remove her dreadlocks.
The majority’s decision to affirm the dismissal of the suit turned on whether the hairstyle was an “immutable” characteristic of black individuals. The majority reasoned that because dreadlocks – unlike a natural afro – are not an immutable characteristic the employer’s decision to revoke the offer was not discriminatory.
Three judges dissented from the majority opinion. Citing the Supreme Court decision in Price Waterhouse v. Hopkins, they said “[a]n employment decision based on a stereotype associated with the employee’s protected class may be disparate treatment under Title VII even when the stereotyped trait is not an ‘immutable’ biological characteristic of the employee.”
As has been the pattern for 20 years, many states and municipalities, including Harris County and Austin in Texas, have responded to the absence of an effective federal law banning hair discrimination in schools, housing, and workplaces. The term Crown Act originates from the California law enacted on July 3, 2019, which was titled the Create a Respectful and Open Workplace for Natural Hair Act.
The Texas Act
Notably, House Bill 567 overwhelmingly passed in the Senate on May 12, 2023 with a 29-1 vote after passing the House 143-5 on April, 12, 2023. The nonpartisan nature of the final votes demonstrates that, from both conservative and liberal viewpoints, race-based hairstyles warranted legal protection. Indeed, the legislative history of the new law identified specific situations in which individuals with race-based hair styles were denied (1) the right to attend or graduate from school, (2) certain employment opportunities, and (3) housing.
The new Texas Act amends the existing prohibitions on race discrimination in the Texas Labor, Education, and Property Codes to include hair texture and “protective hairstyle.” The term “protective hairstyle” includes “braids, locks and twists.”
The existing prohibitions on race discrimination in the Texas Labor Code, which covers employers (with 15 or more employees), labor unions and employment agencies, thus now include “discrimination because of or on the basis of an employee’s hair texture or protective hairstyle commonly or historically associated with race.” The Texas Labor Code has also been amended to provide that an “employer, labor union or employment agency commits an unlawful practice if [it] adopts or enforces a dress or grooming policy that discriminates against a hair texture or protective hairstyle.”
Similarly, the Texas Education Code has been amended to prohibit public school districts and public institutions of higher learning from adopting a student dress or grooming policy, including a policy for an extracurricular activity, that discriminates against a hair texture or protective hair style.
Further, the Texas Property Code has been amended, other than for provisions establishing criminal penalties, to prohibit housing practices that discriminate against a hair texture or protective hairstyle.
Time Is of the Essence for Compliance Readiness
The September 1, 2023, effective date of the new Texas law is only three months away. For employers and other persons subject to the new law, the time to review existing discrimination and grooming policies and training with legal counsel is now.