Locke Lord QuickStudy: New Trends in Discrimination ‎Legislation‎

On Thursday, March 17, 2022, the Massachusetts House of Representatives passed legislation, generally known as the Crown Act, to make the Commonwealth the fifteenth state to prohibit hair discrimination. The impending statute was inspired by twin students at a Malden charter school who were prohibited from attending extracurricular activities, were issued detentions, and prohibited from attending the school prom, all because they wore braids with extensions.

On Friday, March 18, 2022 the United States House of Representatives voted 235-189 to enact a national CROWN Act. The bill, which prohibits hair discrimination in employment, public accommodations, housing, and other venues, now heads to the Senate for its consideration. President Biden supports the legislation.

Handicappers suggest that CROWN Act legislation will become law in Massachusetts. Whether the federal CROWN Act will succeed in the Senate remains to be seen.

In supporting hair discrimination legislation, the NAACP suggests, “Hair discrimination is rooted in systemic racism, and its purpose is to preserve white spaces. Policies that prohibit natural hairstyles, like afros, braids, bantu knots, and locs, have been used to justify the removal of Black children from classrooms, and Black adults from their employment.”

What do these legislative developments suggest? First, legislators who believe various physical characteristics are the basis for discrimination are aggressively pushing statutory enactments they believe will address society’s ills. Second, legislation to prohibit discrimination based on other physical characteristics may follow the lead set by the CROWN legislation. Michigan has barred obesity discrimination. Numerous locales have enacted ordinances covering weight. Binghamton, New York revised its municipal code to include “weight or height” as protected categories. Madison, Wisconsin has prohibited “physical appearance” discrimination. San Francisco’s Human Rights Commission adopted “height and weight” prohibitions to make its programs, services, and facilities accessible. Similarly, Santa Cruz, California, updated its municipal code to include “physical characteristics'' as a protected category while Urbana, Illinois now includes “personal appearance, weight or height” as grounds for discrimination relief. Washington, D.C.’s Human Rights Law now includes “personal appearance” as a protected category.

Moreover, the Washington State Supreme Court has ruled that the state’s definition of disability in the Washington State Law Against Discrimination covers individuals with obesity. Also, lawmakers here in Massachusetts have steadfastly pursued a bill making weight discrimination unlawful.

Bottom line: employers need to monitor local, state and federal enactments to make sure they comply with all applicable anti-discrimination laws and may want to update employee handbooks and employee training accordingly.