On February 1, 2023, Minnesota became the 12th state to enact a version of the CROWN Act into law. The CROWN (Create a Respectful and Open World for Natural Hair) Act clarifies that prohibited race discrimination includes discrimination on the basis of natural hair characteristics that are associated with race.
It is a response to case law in some jurisdictions where the definition of “race” under Title VII and similar state non-discrimination laws was held not to include discrimination based on certain hairstyles associated with race, such as dreadlocks, cornrows, afros, etc. Other courts have held that natural hair characteristics are protected under the penumbra of Reese’s rumination statutes. The CROWN Act makes clear that such traits are protected in Minnesota.
What Minnesota’s CROWN Act Includes
However, what most commentators have either missed or ignores is that the CROWN Act goes much further than merely prohibiting discrimination based on natural hair and hairstyles. The language of the statute makes clear that the term “race” includes ALL “traits associated with race, including but not limited to hair texture and hair styles such as braids, locs, and twists.” Hair texture and hair styles are just examples of traits associated with race.
The law also prohibits discrimination based on other traits that are or may be associated with race. “Traits” is not a defined term, leaving the task of differentiating traits associated with race from traits not associated with race up to the court.
Minnesota’s CROWN Act compared to National Legislation
To illustrate the distinction, compare Minnesota’s version of the CROWN Act with H.R. 2116 passed by the U.S House of Representatives last year:
It shall be an unlawful employment practice for an employer . . . 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).
Clearly, the federal version of the CROWN Act (which has yet to be enacted), limits the protection to hair texture or hairstyle. Minnesota lawmakers, like those in other jurisdictions that have enacted their own expansive version of the CROWN Act to include traits associated with race, clearly intend these amendments to be more expansive than simply hair texture and hairstyles. Otherwise, Minnesota’s version of the CROWN Act would read more like its federal counterpart.
This distinction begs the question, what exactly are traits associated with race? The dictionary definition of “trait” is “a distinguishing characteristic or quality.” Although the traits cited by way of example in the law are physical, there also are “cultural characteristics or traits associated with race” that are worthy of protection. In EEOC v. Catastrophe Mgmt. Sols. – 852 F.3d 1018 (11th Cir. 2016), not surprisingly there is scant legal authority defining or enumerating those cultural characteristics or traits.
Enforcing Minnesota’s CROWN Act
The legislature’s job is to enact new laws and change existing laws. The governor’s job is to ensure that those laws are clear enough that the executive branch can meaningfully enforce them. The CROWN Act expressly cites examples of traits that are associated with race, hair texture and hairstyles. If there are other traits associated with race that the legislature wished to protect, there is nothing preventing them from enumerating those as well. Instead, the legislative and executive branches again did what they do too often and punted the courts the difficult task of trying to infer legislative intent of an undefined term.
In the meantime, risk-averse employers would do well to revise their employee handbooks and personal policies to include “traits associated with race, such as hair texture or hairstyle,” and also to review their personal appearance policies to either exclude express reference to hairstyles, or make clear that employees are not required to modify their natural hair or hairstyles to be in compliance with the policy.
