On July 26, 2022, Governor Baker signed into law legislation designed to protect individuals from discrimination based on natural and protective hairstyles historically associated with race. The Act Prohibiting Discrimination Based on Natural and Protective Hairstyles codifies a definition of “Race” that is applicable to every law prohibiting discrimination on that basis, to include “traits historically associated with race, including, but not limited to, hair texture, hair type, hair length and protective hairstyles.” It further defines “protective hairstyles” to include “braids, locks, twists, Bantu knots, hair coverings and other formations.”
Massachusetts became the 18th state to enact a law protecting against discrimination based on hair characteristics, which are commonly called “CROWN” laws, or those Creating a Respectful and Open World for Natural Hair. The U.S. House of Representatives has also passed legislation adding these protections to federal discrimination law, but it has not been passed by the U.S. Senate. The motivation for these laws are experiences and reports by individuals that they suffered discrimination due to their hair texture and style associated with their race.
While the Massachusetts Commission Against Discrimination (MCAD), the agency charged with the enforcement of the Commonwealth’s anti-discrimination laws, would be likely to enforce the prohibition against race discrimination broadly to include certain race-related traits, courts have sometimes rejected claims related to hairstyle or other traits that may not directly implicate an employee’s race or demonstrate intentional discrimination based on race. The Act now makes clear that under Massachusetts law charter schools, like other employers, may not discriminate against employees based on these traits, even if in a manner that may otherwise appear race-neutral.
Charter schools in Massachusetts should take steps to ensure that they do not treat employees differently on the basis of hairstyle. This includes the implementation or enforcement of policies that may affect these employees differently even if applied in a neutral manner to all employees. For example, charter schools should evaluate their dress, appearance, and grooming policies to ensure that employees with natural or protective hairstyles are not adversely affected, and that no specific types of hairstyles are prohibited in the workplace. Also, charter schools should not make employment decisions based in any part on an employee’s hairstyle, particularly since decision-makers may not always be aware of the association between a particular hairstyle and a person’s race. While the Act is primarily focused on hair characteristics, charter schools should also be mindful to not take other traits into account that may be associated with an employee’s race.
A charter school found liable for employment discrimination may be required to pay lost wages, front pay, emotional distress damages, punitive damages, interest, and attorneys’ fees and costs.
Further, because the Act modifies the definition of “race” to include traits historically associated with race in all state laws, all laws prohibiting race discrimination related to students also now prohibit discrimination based on traits historically associated with race. For example, General Laws Chapter 71, Section 89(m) prohibits race-based discrimination in admissions processes in charter schools. This pre-existing prohibition on race discrimination now explicitly applies to traits historically associated with race. The Act also explicitly extends to participation in sports and athletic events for which the Department of Elementary and Secondary Education has been charged with providing guidance.
The Act charges the MCAD with promulgating rules and regulations to implement this expanded definition of race, and we would expect the MCAD to, at minimum, issue guidance to assist school districts and other employers in complying with this prohibition in the future.
If you have any questions regarding the Act or other discrimination laws, please do not hesitate to reach out to any member of Mirick O’Connell’s Charter School Law Group.