By Allie Cohen
While hair discrimination gears towards all individuals, these policies are really just another way of silencing the cultural expression of racial, ethnic, and religious minorities. Such policies cause adverse psychological, financial, and health effects. In addition to these effects, hair discrimination policies contribute to the achievement gap. Specifically, adults are less likely to be hired and more likely to be fired, while students face the chance of being excluded from participating in after-school activities, and have decreased attendance – decreased attendance is associated with poorer academic performance. While the above should be reason enough to cause concern, hair-discrimination also violates the First and Fourteenth Amendments and Title VII. This begs the question, why is hair-discrimination only handled on a state-level, rather than a federal one?
California’s Milestone
In 2019, California became the first state to pass the Creating a Respectful and Open World for Natural Hair (aka CROWN) act, a bill passed to protect racially-based hairstyles, particularly African-Americans, from discrimination within the workplace and public environments. Subsequently, seven states have enacted similar bills, and 23 have begun deliberations. While states are beginning to make the necessary changes, oppressive hair policies are a national problem and violate our constitutional rights.
Title VII “prohibits employment discrimination based on race, color, religion, sex and national origin.” The purpose of Title VII is to protect people from discrimination against unchangeable characteristics (race). Much of the conversation surrounding hair-discrimination within the courts has been about how ethnic hairstyles are mutable and therefore aren’t protected under federal law. However, biologically, Black people’s hair “retains less moisture, breaks more easily, and is generally more fragile than white peoples,”(Hamilton, 2001) which is why many sport protective hairstyles such as dreads, locks, and afros. Additionally, when Black people seek out treatments to make their hair more professional-looking, they risk hair erosion and harm to their skin. Moreover, because African hair is biologically different from white and other racial groups’ hair, African hair should be considered an immutable characteristic and dealt with on a federal level.
The Free Exercise and the Equal Protection Clause
Additionally, hair-discrimination is a violation of the Free Exercise Clause and the Equal Protection Clause. Specifically, grooming policies violate the First Amendment because hair is an integral part of much religious practice, and in having grooming policies, one is denying the right to practice religion. This is exemplified through the Sunni, where “Sunni and other Muslim sects prohibit male followers from shaving their faces” (Schneider, 2004).
Grooming policies are also an infraction of the Fourteenth Amendment, as they negate “ (rights) based on an impermissible racial or religious affiliation classification”(Schneider, 2004). This is seen in prison grooming policies, wherein federal prisons, such policies are less restrictive because they follow federal law, and in state prisons, such policies are more strict because they follow state law. While conversations surrounding prison-policies pose their unique problems, as facial hair can be a safety and identification hazard, prison hair policies are equally as much of a constitutional infringement as the former.
While the CROWN act has gained momentum in state and federal government (the House has recently passed the bill), it still has not been federally issued or mandated. Hair discrimination is racial and religious discrimination, which violates federal constitutional rights. Moving forward, a Federal Crown Act needs to be enacted.
