[House Report 116-525]
[From the U.S. Government Publishing Office]
116th Congress } { Rept. 116-525
HOUSE OF REPRESENTATIVES
2d Session } { Part 1
======================================================================
CREATING A RESPECTFUL AND OPEN WORLD FOR NATURAL HAIR ACT OF 2020
_______
September 21, 2020.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 5309]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 5309) to prohibit discrimination based on an
individual's texture or style of hair, having considered the
same, reports favorably thereon with an amendment and
recommends that the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 4
Background and Need for the Legislation.......................... 5
Committee Consideration.......................................... 13
Committee Votes.................................................. 13
Committee Oversight Findings..................................... 13
New Budget Authority and Tax Expenditures and Congressional
Budget Office Cost Estimate.................................... 13
Duplication of Federal Programs.................................. 13
Performance Goals and Objectives................................. 13
Advisory on Earmarks............................................. 14
Section-by-Section Analysis...................................... 14
Minority Views................................................... 17
The amendment is as follows:
Strike all that follows after the enacting clause and insert
the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Creating a Respectful and Open World
for Natural Hair Act of 2020'' or the ``CROWN Act of 2020''.
SEC. 2. FINDINGS; SENSE OF CONGRESS; PURPOSE.
(a) Findings.--Congress finds the following:
(1) Throughout United States history, society has used (in
conjunction with skin color) hair texture and hairstyle to
classify individuals on the basis of race.
(2) Like one's skin color, one's hair has served as a basis
of race and national origin discrimination.
(3) Racial and national origin discrimination can and do
occur because of longstanding racial and national origin biases
and stereotypes associated with hair texture and style.
(4) For example, routinely, people of African descent are
deprived of educational and employment opportunities because
they are adorned with natural or protective hairstyles in which
hair is tightly coiled or tightly curled, or worn in locs,
cornrows, twists, braids, Bantu knots, or Afros.
(5) Racial and national origin discrimination is reflected in
school and workplace policies and practices that bar natural or
protective hairstyles commonly worn by people of African
descent.
(6) For example, as recently as 2018, the United States Armed
Forces had grooming policies that barred natural or protective
hairstyles that servicewomen of African descent commonly wear
and that described these hairstyles as ``unkempt''.
(7) In 2018, the United States Armed Forces rescinded these
policies and recognized that this description perpetuated
derogatory racial stereotypes.
(8) The United States Armed Forces also recognized that
prohibitions against natural or protective hairstyles that
African-American servicewomen are commonly adorned with are
racially discriminatory and bear no relationship to African-
American servicewomen's occupational qualifications and their
ability to serve and protect the Nation.
(9) As a type of racial or national origin discrimination,
discrimination on the basis of natural or protective hairstyles
that people of African descent are commonly adorned with
violates existing Federal law, including provisions of the
Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), section
1977 of the Revised Statutes (42 U.S.C. 1981), and the Fair
Housing Act (42 U.S.C. 3601 et seq.). However, some Federal
courts have misinterpreted Federal civil rights law by narrowly
interpreting the meaning of race or national origin, and
thereby permitting, for example, employers to discriminate
against people of African descent who wear natural or
protective hairstyles even though the employment policies
involved are not related to workers' ability to perform their
jobs.
(10) Applying this narrow interpretation of race or national
origin has resulted in a lack of Federal civil rights
protection for individuals who are discriminated against on the
basis of characteristics that are commonly associated with race
and national origin.
(11) In 2019 and 2020, State legislatures and municipal
bodies throughout the United States have introduced and passed
legislation that rejects certain Federal courts' restrictive
interpretation of race and national origin, and expressly
classifies race and national origin discrimination as inclusive
of discrimination on the basis of natural or protective
hairstyles commonly associated with race and national origin.
(b) Sense of Congress.--It is the sense of Congress that--
(1) the Federal Government should acknowledge that
individuals who have hair texture or wear a hairstyle that is
historically and contemporarily associated with African
Americans or persons of African descent systematically suffer
harmful discrimination in schools, workplaces, and other
contexts based upon longstanding race and national origin
stereotypes and biases;
(2) a clear and comprehensive law should address the
systematic deprivation of educational, employment, and other
opportunities on the basis of hair texture and hairstyle that
are commonly associated with race or national origin;
(3) clear, consistent, and enforceable legal standards must
be provided to redress the widespread incidences of race and
national origin discrimination based upon hair texture and
hairstyle in schools, workplaces, housing, federally funded
institutions, and other contexts;
(4) it is necessary to prevent educational, employment, and
other decisions, practices, and policies generated by or
reflecting negative biases and stereotypes related to race or
national origin;
(5) the Federal Government must play a key role in enforcing
Federal civil rights laws in a way that secures equal
educational, employment, and other opportunities for all
individuals regardless of their race or national origin;
(6) the Federal Government must play a central role in
enforcing the standards established under this Act on behalf of
individuals who suffer race or national origin discrimination
based upon hair texture and hairstyle;
(7) it is necessary to prohibit and provide remedies for the
harms suffered as a result of race or national origin
discrimination on the basis of hair texture and hairstyle; and
(8) it is necessary to mandate that school, workplace, and
other applicable standards be applied in a nondiscriminatory
manner and to explicitly prohibit the adoption or
implementation of grooming requirements that disproportionately
impact people of African descent.
(c) Purpose.--The purpose of this Act is to institute definitions of
race and national origin for Federal civil rights laws that effectuate
the comprehensive scope of protection Congress intended to be afforded
by such laws and Congress' objective to eliminate race and national
origin discrimination in the United States.
SEC. 3. FEDERALLY ASSISTED PROGRAMS.
(a) In General.--No individual in the United States shall be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination under, any program or activity receiving Federal
financial assistance, based on the individual's hair texture or
hairstyle, if that hair texture or that hairstyle is commonly
associated with a particular race or national origin (including a
hairstyle in which hair is tightly coiled or tightly curled, locs,
cornrows, twists, braids, Bantu knots, and Afros).
(b) Enforcement.--Subsection (a) shall be enforced in the same manner
and by the same means, including with the same jurisdiction, as if such
subsection was incorporated in title VI of the Civil Rights Act of 1964
(42 U.S.C. 2000d et seq.), and as if a violation of subsection (a) was
treated as if it was a violation of section 601 of such Act (42 U.S.C.
2000d).
(c) Definitions.--In this section--
(1) the term ``program or activity'' has the meaning given
the term in section 606 of the Civil Rights Act of 1964 (42
U.S.C. 2000d-4a); and
(2) the terms ``race'' and ``national origin'' mean,
respectively, ``race'' within the meaning of the term in
section 601 of that Act (42 U.S.C. 2000d) and ``national
origin'' within the meaning of the term in that section 601.
SEC. 4. HOUSING PROGRAMS.
(a) In General.--No person in the United States shall be subjected to
a discriminatory housing practice based on the person's hair texture or
hairstyle, if that hair texture or that hairstyle is commonly
associated with a particular race or national origin (including a
hairstyle in which hair is tightly coiled or tightly curled, locs,
cornrows, twists, braids, Bantu knots, and Afros).
(b) Enforcement.--Subsection (a) shall be enforced in the same manner
and by the same means, including with the same jurisdiction, as if such
subsection was incorporated in the Fair Housing Act (42 U.S.C. 3601 et
seq.), and as if a violation of subsection (a) was treated as if it was
a discriminatory housing practice.
(c) Definition.--In this section--
(1) the terms ``discriminatory housing practice'' and
``person'' have the meanings given the terms in section 802 of
the Fair Housing Act (42 U.S.C. 3602); and
(2) the terms ``race'' and ``national origin'' mean,
respectively, ``race'' within the meaning of the term in
section 804 of that Act (42 U.S.C. 3604) and ``national
origin'' within the meaning of the term in that section 804.
SEC. 5. PUBLIC ACCOMMODATIONS.
(a) In General.--No person in the United States shall be subjected to
a practice prohibited under section 201, 202, or 203 of the Civil
Rights Act of 1964 (42 U.S.C. 2000a et seq.), based on the person's
hair texture or hairstyle, if that hair texture or that hairstyle is
commonly associated with a particular race or national origin
(including a hairstyle in which hair is tightly coiled or tightly
curled, locs, cornrows, twists, braids, Bantu knots, and Afros).
(b) Enforcement.--Subsection (a) shall be enforced in the same manner
and by the same means, including with the same jurisdiction, as if such
subsection was incorporated in title II of the Civil Rights Act of
1964, and as if a violation of subsection (a) was treated as if it was
a violation of section 201, 202, or 203, as appropriate, of such Act.
(c) Definition.--In this section, the terms ``race'' and ``national
origin'' mean, respectively, ``race'' within the meaning of the term in
section 201 of that Act (42 U.S.C. 2000e) and ``national origin''
within the meaning of the term in that section 201.
SEC. 6. EMPLOYMENT.
(a) Prohibition.--It shall be an unlawful employment practice for an
employer, employment agency, labor organization, or joint labor-
management committee controlling apprenticeship or other training or
retraining (including on-the-job training programs) to fail or refuse
to hire or to discharge any individual, or otherwise to discriminate
against an individual, based on the individual's hair texture or
hairstyle, if that hair texture or that hairstyle is commonly
associated with a particular race or national origin (including a
hairstyle in which hair is tightly coiled or tightly curled, locs,
cornrows, twists, braids, Bantu knots, and Afros).
(b) Enforcement.--Subsection (a) shall be enforced in the same manner
and by the same means, including with the same jurisdiction, as if such
subsection was incorporated in title VII of the Civil Rights Act of
1964 (42 U.S.C. 2000e et seq.), and as if a violation of subsection (a)
was treated as if it was a violation of section 703 or 704, as
appropriate, of such Act (42 U.S.C. 2000e-2, 2000e-3).
(c) Definitions.--In this section the terms ``person'', ``race'', and
``national origin'' have the meanings given the terms in section 701 of
the Civil Rights Act of 1964 (42 U.S.C. 2000e).
SEC. 7. EQUAL RIGHTS UNDER THE LAW.
(a) In General.--No person in the United States shall be subjected to
a practice prohibited under section 1977 of the Revised Statutes (42
U.S.C. 1981), based on the person's hair texture or hairstyle, if that
hair texture or that hairstyle is commonly associated with a particular
race or national origin (including a hairstyle in which hair is tightly
coiled or tightly curled, locs, cornrows, twists, braids, Bantu knots,
and Afros).
(b) Enforcement.--Subsection (a) shall be enforced in the same manner
and by the same means, including with the same jurisdiction, as if such
subsection was incorporated in section 1977 of the Revised Statutes,
and as if a violation of subsection (a) was treated as if it was a
violation of that section 1977.
SEC. 8. RULE OF CONSTRUCTION.
Nothing in this Act shall be construed to limit definitions of race
or national origin under the Civil Rights Act of 1964 (42 U.S.C. 2000a
et seq.), the Fair Housing Act (42 U.S.C. 3601 et seq.), or section
1977 of the Revised Statutes (42 U.S.C. 1981).
Purpose and Summary
H.R. 5309, the ``Creating a Respectful and Open World for
Natural Hair Act of 2020'' or the ``CROWN Act of 2020,''
explicitly prohibits discrimination on the basis of hair
texture or hairstyles commonly associated with a particular
race or national origin in areas of the law where
discrimination on the basis of race or national origin is
already prohibited. It specifically prohibits this form of
discrimination in employment, housing, federally-funded
programs, public accommodations, and the making and enforcement
of contracts. It provides that these prohibitions be enforced
as if they were incorporated into Title VII of the Civil Rights
Act of 1964 (42 U.S.C. 2000e et seq.), the Fair Housing Act (42
U.S.C. 3601 et seq.), Title VI of the Civil Rights Act of 1964
(42 U.S.C. 2000d et seq.), Title II of the Civil Rights Act of
1964 (42 U.S.C. 2000a et seq.), and Section 1977 of the Revised
Statutes (42 U.S.C. 1981), respectively.
H.R. 5309 is supported by the NAACP Legal Defense and
Educational Fund, Inc.,\1\ the National Urban League, the
National Organization of Black Elected Legislative Women, the
National Black Caucus of State Legislators, and 254 legal
academics from across the United States.\2\ It is also
supported by the CROWN Act coalition, including Dove, Color of
Change and Western Center on Law and Poverty, that has been
working to pass state-level versions of the CROWN Act in all 50
states.\3\
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\1\Rep. Richmond And Colleagues Introduce Legislation Banning Afro-
Textured Hair Discrimination, Congressman Cedric Richmond (Dec. 5,
2019), available at https://richmond.house.gov/media-center/press-
releases/rep-richmond-and-colleagues-introduce-legislation-banning-
afro-textured.
\2\Markup of H.R. 5309, the Creating a Respectful and Open World
for Natural Hair Act of 2019 or the CROWN Act of 2019, U.S. House of
Representatives Comm. On the Judiciary, 116th Cong. (Letter of Support
for H.R. 5309 from the National Urban League Submitted by the Honorable
Jerrold Nadler; Letter of Support for H.R. 5309 from NOBEL Submitted by
the Honorable Cedric Richmond; Letter of Support for H.R. 5309 from the
NBCSL Submitted by the Honorable Cedric Richmond; Letter of Support for
H.R. 5309 from Professors at Drexel University School of Law Submitted
by the Honorable Cedric Richmond).
\3\Id. (Letter of Support for H.R. 5309 from the CROWN Act
Coalition Submitted by the Honorable Cedric Richmond); The CROWN
Coalition Is Ending Discrimination Against Black Hair, The Crown Act,
available at https://www.thecrownact.com/about.
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Background and Need for the Legislation
I. BACKGROUND
A. Federal Law Regarding Hair Discrimination as Form of Race
Discrimination
There are no explicit protections in federal law against
discrimination on the basis of natural hair as a form of race
discrimination. With respect to employment discrimination, the
Equal Employment Opportunity Commission (EEOC) has issued
guidance interpreting Title VII of the Civil Rights Act of
1964--which prohibits race discrimination in employment--to
prohibit discrimination based on hairstyle or hair texture in
certain circumstances.
Section 15 of the EEOC's Compliance Manual provides ``that
Title VII's prohibition of race discrimination generally
encompasses . . . a person's physical characteristics
associated with race, such as a person's . . . hair[.]''\4\ The
manual further explains that while employers can impose neutral
hairstyle rules, these rules need to be respectful of racial
differences in hair textures and applied evenhandedly. The
manual explicitly states that employers cannot prevent African-
American women from wearing their hair in an ``afro'' style
that complies with a neutral hairstyle rule and that neutral
rules cannot be applied more strictly to hairstyles worn by
African Americans.\5\
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\4\EEOC Compliance Manual, Equal Employment Opportunity Commission
(Apr. 19, 2006), 15-24, available at https://www.eeoc.gov/policy/docs/
race-color.pdf.
\5\Id., 15-48.
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B. Recent Federal Judicial Decisions
In a 2016 decision, the United States Court of Appeals for
the Eleventh Circuit rejected the EEOC's interpretative
guidance that had concluded that Title VII's prohibition on
racial discrimination included prohibiting discrimination
against someone for having dreadlocks.\6\ The Court held that
Title VII protects ``persons in covered categories with respect
to their immutable characteristics, but not their cultural
practices.''\7\ The Court held that Black hairstyle is a
mutable characteristic--unlike Black hair texture which is an
immutable characteristic--and thus is unprotected by Title
VII.\8\
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\6\See Equal Employment Opportunity Comm'n v. Catastrophe Mgmt.
Sols., 852 F.3d 1018, 1023 (11th Cir. 2016).
\7\Id. at 1030.
\8\Id.
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In that same case, the Eleventh Circuit surveyed existing
case law and found that every court to have considered this
issue has similarly rejected the argument that ``Title VII
protects hairstyles culturally associated with race.''\9\ Other
courts have found that dreadlocks and cornrows are not an
immutable characteristic, and thus fall outside the scope of
Title VII protection.\10\ In addition, other courts have held
that policies that prohibit ``unconventional'' hairstyles such
as dreadlocks, braids, and cornrows are not racially
discriminatory within the meaning of Title VII.\11\ Courts have
similarly rejected challenges to grooming policies brought
pursuant to 42 U.S.C. Sec. 1981, which prohibits race
discrimination in the making of contracts. These courts have
found that the plaintiffs failed to demonstrate that only
African-Americans are impacted by these grooming policies.\12\
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\9\Catastrophe Mgmt. Sols., 852 F.3d at 1032.
\10\See Campbell v. Alabama Dep't of Corr., No. 2:13-CV-00106-RDP,
2013 WL 2248086, at *2 (N.D. Ala. May 20, 2013); Pitts v. Wild
Adventures, Inc., No. CIV.A.7:06-CV-62-HL, 2008 WL 1899306, at *5-6
(M.D. Ga. Apr. 25, 2008); Carswell v. Peachford Hosp., No. C80-222A,
1981 WL 224, at *2 (N.D. Ga. May 26, 1981).
\11\See Cooper v. Am. Airlines, Inc., 149 F.3d 1167, 1998 WL
276235, at *1 (4th Cir. May 26, 1998), Eatman v. United Parcel Serv.,
194 F.Supp.2d 256, 259-67 (S.D.N.Y. 2002); McBride v. Lawstaf, Inc.,
No. CIV. A.1:96-CV-0196C, 1996 WL 755779, at *2 (N.D. Ga. Sept. 19,
1996); Rogers v. Am. Airlines, Inc., 527 F.Supp. 229, 232 (S.D.N.Y.
1981).
\12\See Booth v. Maryland, 327 F.3d 377, 383 (4th Cir. 2003)
(holding that the plaintiff did not sufficiently demonstrate in his
Sec. 1981 suit that his company's grooming policies--prohibiting him
from wearing a hairstyle in accordance with his Rastafarian religion--
discriminated against him based on race because both white and African-
American employees were treated differently from him regarding their
hairstyles).
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Nevertheless, as far back as the 1970's, both the EEOC and
at least one federal appeals court sitting en banc concluded
that discrimination based on a natural hairstyle of persons of
African descent may be a basis for alleging race discrimination
under Title VII.\13\ Moreover, in a recent ruling granting a
preliminary injunction by the United States District Court for
the Southern District of Texas, at least one federal court
found that a facially race-neutral hair-length policy that
prohibited hair styles of a certain length likely discriminates
on the basis of race if racial discrimination was a substantial
or motivating factor.\14\ In that case, one of the plaintiffs
was an African American male student who wore his hair in locs
and whose hair was routinely inspected by his school for
potentially violating a hair length school policy that only
applied to male students.\15\ Ultimately, the student was
punished with in-school suspensions because of his hair. The
student and his co-plaintiffs filed a lawsuit against the
school, alleging sex discrimination and race discrimination
under the Fourteenth Amendment's Equal Protection Clause
pursuant to 42 U.S.C. Sec. 1981, among other allegations.\16\
The judge granted the motion for a preliminary injunction to
allow the student to attend classes without fear of punishment
or retaliation, finding a substantial likelihood of success on
the student's claims of sex and race discrimination under the
Equal Protection Clause.\17\
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\13\See Jenkins v. Blue Cross Mutual Hospital Ins. Co., 538 F.2d
164 (7th Cir. 1976) (en banc) (holding that an employee's allegation on
an EEOC charge that she was subject to race discrimination because of
her Afro was sufficient to support a lawsuit alleging race
discrimination in violation of Title VII); EEOC Dec. No. 71-2444, 1971
WL 3898, 4 Fair Empl. Prac. Cas. (BNA) 18 (1971) (``the wearing of an
Afro-American hair style by a Negro has been so appropriated as a
cultural symbol by members of the Negro race as to make its suppression
either an automatic badge of racial prejudice or a necessary
abridgement of first amendment rights.'').
\14\Arnold, et al., v. Barbers Hill Independent School District, et
al., Memorandum Opinion and Order, Civil Action No. 4:20-CV-1802 (S.D.
Tex. Aug. 17, 2020), available at https://www.naacpldf.org/wp-content/
uploads/PI-Opinion.pdf.
\15\Id.
\16\Id.
\17\Id.
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C. Developments in the Military
Three years ago, the United States Army removed a grooming
regulation prohibiting women servicemembers from wearing their
hair in dreadlocks, a regulation that had a disproportionately
adverse impact on Black women.\18\ This decision was the result
of a 2014 order by then-Secretary of Defense Chuck Hagel to
review the military's policies regarding hairstyles popular
with African-American women after complaints that the policies
unfairly targeted black women.\19\ In 2015, the Marine Corps
had issued regulations to permit lock and twist hairstyles.\20\
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\18\Christopher Mele, Army Lifts Ban on Dreadlocks, and Black Women
Servicemembers Rejoice, N.Y. Times (Feb. 10, 2017), available at
https://www.nytimes.com/2017/02/10/us/army-ban-on-dreadlocks-black-
servicewomen.html.
\19\Id.
\20\Id.
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D. State and Local Laws Prohibiting Discrimination Based on Natural
Hairstyle or Hair Texture
California,\21\ New York,\22\ New Jersey,\23\ Virginia,\24\
Colorado,\25\ Washington,\26\ and Maryland,\27\ as well as two
local jurisdictions--Montgomery County, MD,\28\ and Cincinnati,
OH\29\--have enacted laws banning discrimination on the basis
of an individual's natural hairstyle. California became the
first state to pass a bill, with the purpose of ``ensur[ing]
protection against discrimination in the workplace and schools
based on hairstyles by prohibiting employers and schools from
enforcing purportedly `race neutral' grooming policies that
disproportionately impact persons of color.''\30\
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\21\Phil Willon, California Becomes First State to Ban
Discrimination Based on One's Natural Hair, Los Angeles Times (July 3,
2019), available at https://www.latimes.com/local/lanow/la-pol-ca-
natural-hair-discrimination-bill-20190703-story.html.
\22\Janelle Griffith, New York is Second State to Ban
Discrimination Based on Natural Hairstyles, NBC News (July 15, 2019),
available at https://www.nbcnews.com/news/nbcblk/new-york-second-state-
ban-discrimination-based-natural-hairstyles-n1029931.
\23\Mariel Padilla, New Jersey is Third State to Ban Discrimination
Based on Hair, N.Y. Times (Dec. 20, 2019), available at https://
www.nytimes.com/2019/12/20/us/nj-hair-discrimination.html.
\24\Francisco Guzman and Saba Hamedy, It's official: Virginia is
now the fourth state to ban hair discrimination, CNN (Mar. 5, 2020),
available at https://www.cnn.com/2020/03/05/us/virginia-ban-hair-
discrimination-bill-trnd/index.html.
\25\Audra Streetman, Gov. Polis Signs CROWN Act, Banning Hair
Discrimination In Colorado, CBS Denver (Mar. 6, 2020), available at
https://denver.cbslocal.com/2020/03/06/gov-polis-signs-crown-act-
banning-hair-discrimination-in-colorado/.
\26\Associated Press, Ban on Race-Based Hairstyle Discrimination
Signed Into Law, U.S. News and World Report (Mar. 19, 2020), available
at https://www.usnews.com/news/best-states/washington/articles/2020-03-
19/ban-on-race-based-hairstyle-discrimination-signed-into-law.
\27\Ovetta Wiggins, States are banning discrimination against black
hairstyles. For some lawmakers, it's personal, Wash. Post (Mar. 16,
2020), available at https://www.washingtonpost.com/local/md-politics/
maryland-bill-crown-act-hairstyles-discrimination/2020/03/12/c3b81582-
5f05-11ea-b014-4fafa866bb81_story.html.
\28\Iris Vukmanovic, New Law in Montgomery County Protects
Residents from Hair Discrimination, NBC Washington (Feb. 6, 2020),
available at https://www.nbcwashington.com/news/local/new-law-in-
montgomery-county-protects-residents-from-hair-discrimination/2211266/.
\29\Sharon Coolidge, Cincinnati outlaws discrimination based on
natural hairstyles associated with race, USA Today (Oct. 9, 2019),
available at https://www.usatoday.com/story/news/nation/2019/10/09/
cincinnati-council-votes-ban-discrimination-based-natural-hair/
3926284002/.
\30\Senate Bill 188 by Sen. Holly J. Mitchell Would Protect Blacks,
Holly J. Mitchell (June 4, 2019), available at https://
sd30.senate.ca.gov/news/press-releases/2019-06-04-june-4-2019-video-
assembly-panel-endorses-sen-mitchell-bill-ban-hair.
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1. California
California enacted a version of The CROWN Act in June 2019
with unanimous bipartisan support.\31\ The Act extended state
anti-discrimination statutory protections in the California
Fair Employment and Housing Act and the California Education
Code to prohibit discrimination based on hair texture and
hairstyles.\32\ Specifically, the California statute amended
the Education Code and Government Code to provide that ``race''
includes ``traits historically associated with race, including,
but not limited to, hair texture and protective
hairstyles.''\33\ Protective hairstyles are hairstyles that
tuck the ends of one's hair away and minimize manipulation and
exposure to the weather, therefore helping keep hair
healthy.\34\ The Act defines ``protective hairstyles'' as
including (but not limited to) ``braids, locks, and
twists.''\35\
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\31\California Senate Bill No. 188, California Legislative
Information, available at http:/leginfo.legislature.ca.gov/faces/
billNavClient.xhtml?bill_id=201920200SB188.
\32\Id.
\33\Id.
\34\Natalya Moosa, Protective Styling: What Every Natural Needs to
Know, Afrocenchix (Oct. 25, 2018) available at https://afrocenchix.com/
blogs/news/protective-styling-what-every-natural-needs-to-know.
\35\California Senate Bill No. 188, California Legislative
Information, available at http:/leginfo.legislature.ca.gov/faces/
billNavClient.xhtml?bill_id=201920200SB188.
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In passing the California CROWN Act, the California
Legislature made several keys findings.\36\ These include:
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\36\Id.
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(a) America's laws and societal norms have equated
``blackness'' and associated physical traits (such as dark
skin, and kinky and curly hair) to a ``badge of inferiority.''
(b) This understanding of blackness permeates ``societal
understanding of professionalism,'' which has long been
associated with European features and mannerisms. This has led
to those who do not conform with Eurocentric norms to have to
alter their appearances in order to be ``deemed professional.''
(c) Hair remains a source of racial discrimination with
economic and health consequences. This disproportionally
impacts Black individuals.
(d) Workplace dress codes and grooming policies that
prohibit certain hairstyles, ``including afros, braids twists,
and locks'' have a disparate impact on Black individuals. These
policies are ``more likely to deter Black applicants and burden
or punish Black employees than any other group.''
(e) Federal courts have not recognized that naturally
presented Black hair, such as braids, twists, and locks, are
protected under Title VII.
(f) Because hair is a proxy for race, ``hair discrimination
targeting hairstyles associated with race is racial
discrimination.''
(g) Enforcing ``Eurocentric image[s] of professionalism
through purportedly race-neutral grooming policies that
disparately impact Black individuals and exclude them from some
workplaces is in direct opposition to equity and opportunity
for all.''
2. New York
New York enacted a law substantially identical to
California's CROWN Act in July 2019 with bipartisan support.
The New York law amends the state's human rights and education
laws to prohibit discrimination based on hair texture and
protective hairstyles.\37\
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\37\Senate Bill S6209A, The New York State Senate, available at:
https://www.nysenate.gov/legislation/bills/2019/s6209.
---------------------------------------------------------------------------
The New York State Legislature made several key
findings.\38\ These include:
---------------------------------------------------------------------------
\38\Id.
---------------------------------------------------------------------------
(a) The New York City Commission on Human Rights found that
hair restrictions in workplaces, schools, and public places are
a form of racial discrimination.
(b) The Commission recommended guidelines to allow people
to maintain their ``natural hair, treated or untreated
hairstyles such as loos, cornrows, twists, braids, Bantu knots,
fades, Afros, and/or the right to keep hair in an uncut or
untrimmed state.''
(c) There have been recent stories of hair discrimination
in the news. These include: a New Jersey high school wrestler
who was forced to cut his hair or forfeit his wrestling match,
a 6-year-old Florida boy who was turned away from a private
school on his first day because his hair extended below his
ears, and a New Orleans-area girl who was sent home from the
start of the school year at a Catholic school for wearing
braids.
When signing the bill into law, Governor Andrew Cuomo
remarked that ``[f]or much of our nation's history, people of
color--particularly women--have been marginalized and
discriminated against simply because of their hair style or
texture. By signing this bill into law, we are taking an
important step toward correcting that history and ensuring
people of color are protected from all forms of
discrimination.''\39\
---------------------------------------------------------------------------
\39\Governor Cuomo Signs S6209A/A7797A To Make Clear Civil Rights
Laws Ban Discrimination Against Hair Styles or Textures Associated with
Race. Governor Andrew M. Cuomo (July 12, 2019), available at https://
www.governor.ny.gov/news/governor-cuomo-signs-s6209aa7797a-make-clear-
civil-rights-laws-ban-discrimination-against-hair.
---------------------------------------------------------------------------
3. New Jersey
New Jersey enacted a law similar to California's CROWN Act
in December 2019 with nearly unanimous bipartisan support. The
New Jersey law amends the state's Law Against Discrimination to
prohibit discrimination based on hair texture, hair type, and
protective hairstyles.\40\
---------------------------------------------------------------------------
\40\Senate Bill 3945, New Jersey Legislature, available at https://
www.njleg.state.nj.us/2018/Bills/AL19/272_.PDF.
---------------------------------------------------------------------------
When the bill was signed into law, the sponsor of the bill,
Senator Cunningham, stated ``[t]his law will ensure people of
color are free to wear their hair however they feel best
represents them, whether that be locks, braids, twists or
curls. No one should ever be told it is `unprofessional' to
embrace their culture. It is unacceptable that someone could be
dismissed from school or denied employment because they wear
their hair exactly how it grows, but that has been the reality
for many black and brown individuals. Today, here in New
Jersey, we've changed that.''\41\
---------------------------------------------------------------------------
\41\Governor Murphy Signs Legislation Clarifying that
Discrimination Based on Hairstyles Associated with Race is Illegal,
Governor Phil Murphy (Dec. 12, 2019) (emphasis added), available at
https://www.nj.gov/governor/news/news/562019/approved/20191219c.shtml.
---------------------------------------------------------------------------
4. Virginia
Virginia enacted a law similar to California's CROWN Act in
March 2020 with bipartisan support, including unanimous support
in the State Senate. The Virginia law amends the Virginia Human
Rights Act to prohibit discrimination based on hair texture,
hair type, and protective hairstyles.\42\
---------------------------------------------------------------------------
\42\SB 50 Virginia Human Rights Act; racial discrimination, hair,
Virginia's Legislative Information System, available at https://
lis.virginia.gov/cgi-bin/legp604.exe?201+sum+SB50.
---------------------------------------------------------------------------
When signing the bill into law, Governor Northam remarked
``It's pretty simple--if we send children home from school
because their hair looks a certain way, or otherwise ban
certain hairstyles associated with a particular race--that is
discrimination. This is not only unacceptable and wrong, it is
not what we stand for in Virginia. This bill will make our
Commonwealth more equitable and welcoming for all.''\43\
---------------------------------------------------------------------------
\43\Autumn Childress, Gov. Northam signs bill to ban hair
discrimination in Virginia, WHSV (Mar. 4, 2020) available at https://
www.whsv.com/content/news/Gov-Northam-signs-bill-to-ban-hair-
discrimination-in-Virginia-568490981.html?ref=981.
---------------------------------------------------------------------------
5. Colorado
Colorado enacted a law similar to California's CROWN Act in
March 2020 with bipartisan support. The Colorado law amends
numerous laws with nondiscrimination provisions to prohibit
discrimination based on hair texture, hair type, and protective
hairstyles.\44\
---------------------------------------------------------------------------
\44\HB 20-1048, Colorado General Assembly, available at https://
leg.colorado.gov/bills/hb20-1048.
---------------------------------------------------------------------------
The legislature made several key findings.\45\ These
included:
---------------------------------------------------------------------------
\45\Id.
---------------------------------------------------------------------------
(a) Society has used hair, in conjunction with skin color,
to classify people on the basis of race throughout U.S.
history.
(b) Hair, like skin color, serves as a basis of race
discrimination.
(c) Racial discrimination can and does occur because of
racial biases and stereotypes associated with hair.
(d) People of African descent are routinely deprived of
education and employment opportunities because they wear their
hair in natural or protective styles.
(e) Racial discrimination is reflected in policies and
practices in schools and workplaces that prohibit natural or
protected hairstyles common among people of African descent, as
well as Jewish, Latinx, and Native American people.
(f) Colorado should acknowledge that people who have hair
textures or styles that are associated with people of African,
Jewish, Latinx, or Native American descent suffer harmful
discrimination in various contexts because of racial
stereotypes and bias.
(g) A clear and comprehensive law is needed to address the
deprivation of opportunities, including in educational and
employment settings, on the basis of hair textures, types, and
protective styles commonly associated with certain races.
(h) Clear, consistent, and enforceable legal standards are
necessary to provide remedies to address race discrimination on
the basis of hair texture, type and protective hair styles in
numerous contexts.
(i) It is necessary to prevent decisions, practices, and
policies in educational, employment and other settings
resulting from negative racial biases and stereotypes,
(j) The state must enforce its antidiscrimination laws to
secure equal opportunities regardless of race and protect
against racial discrimination based on hair texture, type, and
protective styles.
(k) The state must prohibit and provide recourse for those
who are discriminated against on the basis of race because of
their hair texture, hair type, or protective style.
6. Washington
Washington enacted a law similar to California's CROWN Act
in March 2020 with bipartisan support. The Washington law
amends the state's nondiscrimination protections to prohibit
discrimination based on hair texture and protective
hairstyles.\46\
---------------------------------------------------------------------------
\46\HB 260--2019-20, Concerning Hair Discrimination, Washington
State Legislature, available at https://app.leg.wa.gov/
billsummary?BillNumber=2602&Initiative=false&Year=2019.
---------------------------------------------------------------------------
In response to the bill being signed into law, lead sponsor
Rep. Melanie Morgan stated ``Black women should not be barred
from success because of the way we wear our hair. The way we
choose to style our hair is culturally meaningful, and it has
no impact on our abilities to show up professionally,
hygienically, and naturally at work and school. We are sending
a message to our children, `You are beautiful just the way you
are.'''\47\
---------------------------------------------------------------------------
\47\Governor signs Morgan bill to prohibit hair discrimination,
Washington State House Democrats (Mar. 19, 2020) available at https://
housedemocrats.wa.gov/morgan/2020/03/19/governor-signs-morgan-bill-to-
prohibit-hair-discrimination/.
---------------------------------------------------------------------------
7. Maryland
Maryland enacted a law similar to California's CROWN Act in
May 2020 with nearly unanimous bipartisan support. The Maryland
law amends existing law to prohibit discrimination based on
hair texture, Afro hairstyles, and protective hairstyles.\48\
---------------------------------------------------------------------------
\48\SB 531, Maryland General Assembly, available at http://
mgaleg.maryland.gov/mgawebsite/Legislation/Details/sb0531?ys=2020RS.
---------------------------------------------------------------------------
Delegate Stephanie Smith, who sponsored the bill in the
General Assembly told the Washington Post ``To require people
to pretty much alter chemically or in some type of extreme way
how their hair grows out of the head seems to me so beyond
intrusive. In the 21st century, it shouldn't be necessary to
make those kind of accommodations so someone can see you as a
human or as a professional.''\49\
---------------------------------------------------------------------------
\49\Ovetta Wiggins, States are banning discrimination against black
hairstyles. For some lawmakers, it's personal. Wash. Post (Mar. 16,
2020) available at https://www.washingtonpost.com/local/md-politics/
maryland-bill-crown-act-hairstyles-discrimination/2020/03/12/c3b81582-
5f05-11ea-b014-4fafa866bb81_story.html.
---------------------------------------------------------------------------
II. NEED FOR THE LEGISLATION
While state laws provide some measure of protection against
discrimination on the basis of hair texture or hairstyles
commonly associated with a particular race or national origin,
such protections are incomplete and leave many minorities,
especially Black Americans, vulnerable to discrimination. In
addition, recent court rulings have found that existing civil
rights laws do not prohibit discrimination based on hair
texture or hairstyle. Clear and explicit nondiscrimination
protections on the basis of hair texture or hairstyles commonly
associated with a particular race or national origin are
therefore necessary to ensure minorities, especially Black
Americans, are protected from this form of insidious
discrimination.
According to a 2019 study conducted by the JOY Collective
(CROWN Act Coalition, Dove/Unilever, National Urban League,
Color of Change) [hereinafter ``CROWN Study''], Black people
are ``disproportionately burdened by policies and practices in
public places, including the workplace, that target, profile,
or single them out for their natural hair styles--referring to
the texture of hair that is not permed, dyed, relaxed, or
chemically altered.''\50\ The CROWN Study found that Black
women's hair is ``more policed in the workplace, thereby
contributing to a climate of group control in the company
culture and perceived professional barriers'' compared to non-
Black women. The study also found that ``Black women are more
likely to have received formal grooming policies in the
workplace, and to believe that there is a dissonance from her
hair and other race's hair'' and that ``Black women's
hairstyles were consistently rated lower or `less ready' for
job performance.''\51\ Among the study's other findings are
that 80 percent of Black women believed that they had to change
their hair from its natural state to ``fit in at the office,''
that they were 83 percent more likely to be judged harshly
because of their looks, that they were 1.5 times more likely to
be sent home from the workplace because of their hair, and that
they were 3.4 times more likely to be perceived as
unprofessional compared to non-African-American women.\52\
---------------------------------------------------------------------------
\50\JOY Collective, C.R.O.W.N. Research Study, Unilever PLC (2019),
available at https://www.thecrownact.com/research.
\51\Id.
\52\Id.
---------------------------------------------------------------------------
While the CROWN Study illustrates the prevalence of hair
discrimination, numerous stories across the country put names
and faces to the people behind those numbers. For example, in
2017, a Banana Republic employee was told by a manager that she
was violating the company's dress code because her box braids
were too ``urban'' and ``unkempt.''\53\ A year later, in 2018,
Andrew Johnson, a New Jersey high school student, was forced by
a white referee to either have his dreadlocks cut or forfeit a
wrestling match, leading him to have his hair cut in public by
an athletic trainer immediately before the match.\54\ That same
year, an 11-year-old Black girl in Louisiana was asked to leave
class at a private Roman Catholic school near New Orleans
because her braided hair extensions violated the school's
policies.\55\ The next year, two African-American men in Texas
alleged being denied employment by Six Flags because of their
hairstyles--one had long braids and the other had
dreadlocks.\56\ And earlier this year, there were news reports
of a Texas student who would not be allowed to walk at
graduation because his dreadlocks were too long.\57\ There have
been several high-profile news reports of Black students forced
to change their natural hair, or having been turned away from
schools because of their hair.\58\ In California, school
officials in the Fresno area have sent Black students home
because of curls and shaved heads.\59\ Unfortunately, these are
just a few of the many cases of hair discrimination against
Black workers and students in recent years.
---------------------------------------------------------------------------
\53\Lindsay Schallon, Employers Have Policed Black Hair for
Decades. These Four Women Have Had Enough, Glamour (Aug. 13, 2019),
available at https://www.glamour.com/story/hair-discrimination-woty-
all-year.
\54\Jacob Bogage, Eli Rosenberg and Alex Horton, A white referee
told a high school wrestler to cut his dreadlocks or forfeit. He took
the cut., Wash Post (Dec. 22, 2018), available at https://
www.washingtonpost.com/sports/2018/12/21/referee-high-school-wrestler-
cut-your-dreadlocks-or-forfeit/.
\55\Julia Jacobs and Dan Levin, Black Girl Sent Home From School
Over Hair Extensions, N.Y. Times (Aug. 21, 2018) available at https://
www.nytimes.com/2018/08/21/us/black-student-extensions-louisiana.html.
\56\Bill Hanna, Two African-American teens denied jobs at Six Flags
Over Texas because of hairstyles, Fort Worth-Star Telegram (Mar. 29,
2019), available at https://www.star-telegram.com/news/local/arlington/
article228387009.html.
\57\Leah Asmelash, If this Texas student doesn't cut his
dreadlocks, he won't get to walk at graduation. It's another example of
hair discrimination, some say, CNN (Jan. 24, 2020), available at
https://www.cnn.com/2020/01/23/us/barbers-hill-isd-dreadlocks-deandre-
arnold-trnd/index.html.
\58\Janelle Griffith, When hair breaks rules: Some black children
are getting in trouble for natural hairstyles, NBC (Feb. 23, 2019),
available at https://www.nbcnews.com/news/nbcblk/when-hair-breaks-
rules-some-black-children-are-getting-trouble-n973346.
\59\Alexa Diaz, California Set to Be First State to Protect Black
People from Natural Hair Discrimination, Los Angeles Times (June 27,
2019), available at https://www.latimes.com/local/lanow/la-pol-ca-hair-
discrimination-bill-20190627-story.html.
---------------------------------------------------------------------------
Committee Consideration
On September 15, 2020, the Committee met in open session
and ordered the bill, H.R. 5309, favorably reported as an
amendment in the nature of a substitute by voice vote, a quorum
being present.
Committee Votes
No record votes occurred during the Committee's
consideration of H.R. 5309.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures and Congressional Budget
Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received a cost estimate for this bill from the
Director of Congressional Budget Office. The Committee has
requested but not received from the Director of the
Congressional Budget Office a statement as to whether this bill
contains any new budget authority, spending authority, credit
authority, or an increase or decrease in revenues or tax
expenditures.
Duplication of Federal Programs
No provision of H.R. 5309 establishes or reauthorizes a
program of the federal government known to be duplicative of
another federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
5309 would explicitly prohibit discrimination on the basis of
hair texture or hairstyles commonly associated with a
particular race or national origin in areas of the law where
discrimination on the basis of race or national origin is
already prohibited.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 5309 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Section 1. Short Title. Section 1 sets forth the short
title of the bill as the ``Creating a Respectful and Open World
for Natural Hair Act of 2020'' or the ``CROWN Act of 2020.''
Section 2. Findings; Sense of Congress; Purpose. Section
2(a) sets forth various findings in support of the bill,
including that while discrimination against people of African
descent based on natural or protective hairstyles or texture
already constitutes race or national origin discrimination that
is prohibited by existing federal civil rights statutes because
such traits are commonly associated with race, several federal
courts have erroneously interpreted such statutes to exclude
discrimination based on hairstyle or hair texture from such
existing anti-discrimination protections.
Section 2(b) states that it is the sense of Congress that a
federal law protecting against discrimination based on hair
textures and hairstyles associated with African Americans or
people of African descent is necessary to protect more
comprehensively against racial and national origin
discrimination.
Section 2(c) sets forth the Act's purpose to ensure that
federal civil rights laws prohibiting race and national origin
discrimination are applied comprehensively.
Section 3. Federally Assisted Programs. Section 3(a)
prohibits discrimination in federally funded programs and
activities based on an individual's hair texture or hairstyle
if it is commonly associated with a particular race or national
origin, including ``a hairstyle in which hair is tightly coiled
or tightly curled, locs, cornrows, twists, braids, Bantu knots,
and Afros.''
Section 3(b) provides that Section 3(a) will be enforced as
if it was incorporated into Title VI of the Civil Rights Act of
1964, which prohibits discrimination on the basis of race,
color, or national origin in federally-funded programs, and
that violations of Section 3(a) will be treated as if they were
violations of Section 601 of the Civil Rights Act of 1964.
Section 3(c) provides that the term ``program or activity''
has the same meaning as it does in Section 606 of the Civil
Rights Act of 1964 and the terms ``race'' and ``national
origin'' have the same meanings as they do in Section 601 of
the 1964 Act.
Section 4. Housing programs. Section 4(a) prohibits
discrimination in housing based on an individual's hair texture
or hairstyle if it is commonly associated with a particular
race or national origin, including ``a hairstyle in which hair
is tightly coiled or tightly curled, locs, cornrows, twists,
braids, Bantu knots, and Afros.''
Section 4(b) provides that Section 4(a) will be enforced as
if it was incorporated into the Fair Housing Act, which
prohibits discrimination in housing on the basis of, among
other things, race and national origin, and that violations of
Section 4(a) will be treated as if they were discriminatory
housing practices.
Section 4(c) provides that the terms ``discriminatory
housing practice'' and ``person'' have the same meanings as
they do in Section 802 of the Fair Housing Act and ``race'' and
``national origin'' have the same meanings as they do in
Section 804 of the Fair Housing Act.
Section 5. Public Accommodations. Section 5(a) prohibits
discrimination in public accommodations, as prohibited under
Sections 201, 202, and 203 of the Civil Rights Act of 1964,
based on an individual's hair texture or hairstyle if it is
commonly associated with a particular race or national origin,
including ``a hairstyle in which hair is tightly coiled or
tightly curled, locs, cornrows, twists, braids, Bantu knots,
and Afros.''
Section 5(b) provides that Section 5(a) will be enforced as
if it was incorporated into Title II of the Civil Rights Act of
1964, which prohibits discrimination or segregation in public
accommodations on the basis of, among other things, race and
national origin, and that violations of Section 5(b) will be
treated as if they were violations of Sections 201, 202, or 203
of the Civil Rights Act of 1964.
Section 5(c) provides that the terms ``race'' and
``national origin'' have the same meanings as they do in
Section 201 of the Civil Rights Act of 1964.
Section 6. Employment. Section 6(a) prohibits
discrimination in employment (including by an employer,
employment agency, labor organization, or joint labor-
management committee controlling apprenticeship or other
training or retraining programs, including on-the-job training
programs) based on an individual's hair texture or hairstyle if
it is commonly associated with a particular race or national
origin, including ``a hairstyle in which hair is tightly coiled
or tightly curled, locs, cornrows, twists, braids, Bantu knots,
and Afros.''
Section 6(b) provides that Section 6(a) will be enforced as
if it was incorporated into Title VII of the Civil Rights Act
of 1964, which prohibits discrimination in employment on the
basis of, among other things, race and national origin, and
that violations of Section 6(b) will be treated as if they were
violations of Sections 703 or 704 of the Civil Rights Act of
1964.
Section 6(c) provides that the terms ``race'' and
``national origin'' have the same meanings as they do in
Section 701 of the Civil Rights Act of 1964.
Section 7. Equal Rights Under the Law. Section 7(a) applies
the prohibited practices under Section 1977 of the Revised
Statutes (42 U.S.C. 1981) to encompass practices based on an
individual's hair texture or hairstyle if it is commonly
associated with a particular race or national origin, including
``a hairstyle in which hair is tightly coiled or tightly
curled, locs, cornrows, twists, braids, Bantu knots, and
Afros.'' Section 1977 of the Revised Statutes provides that all
people within the jurisdiction of the United States will have
the same rights as white citizens to ``make and enforce
contracts, to sue, be parties, give evidence, and to the full
and equal benefit of all laws and proceedings for the security
of persons and property . . . and shall be subject to like
punishment, pains, penalties, taxes, licenses, and exactions of
every kind, and to no other.''
Section 7(b) provides that Section 7(a) will be enforced as
if it was incorporated into Section 1977 of the Revised
Statutes and that violations of Section 7(b) will be treated as
if they were violations of Section 1977 of the Revised
Statutes.
Section 8. Rule of Construction. Section 8 provides a rule
of construction that the act shall not be construed to limit
the definitions of race or national origin under the Civil
Rights Act of 1964, the Fair Housing Act, or Section 1977 of
the Revised Statutes.
Minority Views
In the precious few legislative days remaining in this
Congress, the Committee on the Judiciary would be better served
by focusing on matters of pressing national concern. There has
been violent unrest for weeks in Democrat-run cities and urban
centers across the country, including looting, rioting,
destruction of public and private property, and attacks on law
enforcement officers. These serious issues are squarely within
the jurisdiction of the Committee, and it is incumbent upon the
Committee to address them. Instead, the Committee's Democrat
majority has decided to act upon H.R. 5309, a bill that would
prohibit conduct that is already illegal under Federal law.
Using a pretextual reason as cover for undertaking an
action prohibited by Federal civil rights law is nonetheless a
violation of Federal civil rights law.\1\ In Oncale v.
Sundowner Offshore Services, Inc., in an opinion authored by
the late Justice Scalia, the Supreme Court explained that
``statutory prohibitions often go beyond the principal evil to
cover reasonably comparable evils.''\2\ The Civil Rights Act
and other Federal civil rights statutes prohibit the
discrimination on the basis of race, color, or national origin
in public accommodations,\3\ public facilities,\4\ public
education,\5\ federally funded programs,\6\ housing,\7\
employment,\8\ and other aspects of our daily lives. While the
contours of these laws vary, their primary intent is simple and
consistent: disparate treatment of one individual when compared
to another cannot be based on race, color, or national
origin.\9\
---------------------------------------------------------------------------
\1\See, e.g., McDonnel Douglas Corp. v. Green, 411 U.S. 792, 805
(1973) (``Title VII does not . . . permit petition to use respondent's
conduct as a pretext for the sort of discrimination prohibited by
Sec. 703(a)(1).'').
\2\Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79-80
(1998).
\3\See 42 U.S.C. Sec. 2000a et seq.
\4\See 42 U.S.C. Sec. 2000b et seq.
\5\See 42 U.S.C. Sec. 2000c et seq.
\6\See 42 U.S.C. Sec. 2000d et seq.
\7\See 42 U.S.C. Sec. 3601 et seq.
\8\See 42 U.S.C. Sec. 2000e et seq.
\9\See, e.g., Oncale, 523 U.S. at 80 (``The critical issue, Title
VII's text indicates, is whether members of one sex are exposed to
disadvantageous terms or conditions of employment to which members of
the other sex are not exposed.'' (internal quotations omitted)).
---------------------------------------------------------------------------
However, a race-neutral policy is not disparate treatment
simply because it is applied to a member of a protected
class.\10\ Courts have long recognized that neutral policies
may legitimately require members of protected classes to take
meet certain appearance standards, such as when hair would
impede the use of a job-critical tool like a respirator.\11\
H.R. 5309 asserts that ``society has used (in conjunction with
skin color) hair texture and hairstyle to classify individuals
on the basis of race'' and that ``[r]acial and national origin
discrimination can and do occur because of longstanding racial
and national origin biases and stereotypes associated with hair
texture and style.''\12\ To the extent these assertions are
true, that conduct is already illegal under Federal civil
rights laws. In fact, some Federal courts have already ruled
that ``grooming requirements . . . applied to black persons
[may] constitute [] . . . racial discrimination. . . .''\13\
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\10\See, e.g., EEOC v. Catastrophe Mgmt. Sols., 852 F.3d 1018 (11th
Cir. 2016).
\11\See Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th Cir.
1993).
\12\CROWN Act of 2019, H.R. 5309, 116th Cong. Sec. 2(a).
\13\E.g. Jenkins v. Blue Cross Mut. Hospital Ins., Inc., 538 F.2d
164, 168 (7th Cir. 1976).
---------------------------------------------------------------------------
The process by which the Committee has considered H.R. 5309
is deficient. At the beginning of this Congress, the Democrats
added a requirement to the House Rules that a committee must
hold a legislative hearing on a bill before it is considered on
the floor. This legislative hearing is meant to inform the
committee of what problem the bill is meant to solve, the
bill's merits, and whether Congressional action is necessary.
Here, the Democrat majority failed to abide by their own
rules--the Committee invested no time in a legislative hearing
for H.R. 5309.
The Committee made no effort to receive testimony from
alleged victims of the discrimination targeted by this bill on
whether this bill is needed. The Committee also made no effort
to receive testimony from legal scholars or those responsible
for enforcing our Nation's civil rights laws on the possible
efficacy of this bill, and whether it will achieve its desired
effect. The apparent rush to bring this bill to the floor
suggests that this is nothing more than an exercise in
political messaging in advance of the coming elections.
Jim Jordan,
Ranking Member.
[all]