Employment Law

Employment Discrimination Basics 101

     Although you have likely heard the term “employment discrimination” and may have been unlucky enough to have been discriminated against in an employment setting, it is important to understand what “discrimination” really means in the employment law context and what conduct constitutes “discrimination.” Interestingly, although morally wrong, discrimination laws do not protect all employees and many employers can legally discriminate against potential employees or current employees under some circumstances. While it is easily understood that discrimination generally means to treat one person—or several people— belonging to a certain group in a way that others are not treated, and usually in a negative manner. Not all negative treatment meets the legal discrimination standard. under prevailing anti-discrimination Acts such as the Civil Rights Act (“CRA”), the Equal Pay Act (“EPA”), the Americans with Disabilities Act (“ADA”), and more.

     Despite there being so many legal protections in place to assist various protected classes and combat employment discrimination, discrimination in the workplace is still very relevant and may be happening where you are employed. Anti-discrimination laws, although the earliest legislative Act on the topic now having been in place around 59 years, are relatively new when considering that America is 264 years old. In context, real equality is still very much in the works in this country, and a seemingly new practice despite America historically being established on principles such as “equal treatment under the law.” As we know all too well, what seems easy in theory is not always easy in practice. Even where laws and legal repercussions exist, there is always someone willing to break them and endure the consequences that will result. This is evidence that, while legal protections can help, we largely depend on the hope that there are like-minded people out there who seek and crave a cooperative inclusive work environment as we do and are willing to ensure equality in the workplace.

     This article will cover only some anti-discrimination laws and the legislative Acts they’re contained in, predominantly the CRA, which recognizes “protected classes” such as race, national origin, and religion. We will also discuss what conduct is generally considered “discriminatory” and accordingly prohibited. In addition, we will discuss what employers are covered under the CRA and must abide by its provisions, along with the government agency charged with ensuring employers are compliant with the CRA.

     Please note that, because employment discrimination is a broad topic involving many issues, this article has been broken down into two articles. Other protected classes under the CRA include sex, genetics, and age, which are covered in a companion article, “Employment Discrimination Basics Continued: Sex-Based, Genetic-Based, and Age-Based Discrimination.” Disability-based discrimination is covered in additional article, “Understanding Employment Discrimination under the Americans with Disabilities Act.”

The Civil Rights Act (1964)

A Little History…

     At the time the CRA was passed in 1964, there were still substantial disparities in “equal treatment under the law,” as required by the Fourteenth Amendment despite the many perceived legal and societal advancements intended to protect minority populations. In 1963, President Kennedy asked Congress to construct comprehensive civil rights legislation which was done in response to social unrest and a massive resistance to desegregation.  Although President Kennedy never saw the CRA’s passage, his successor, President Lyndon B. Johnson, secured the bill’s passage the next year.

Title VIII and “Protected Classes” under the CRA

     Title VIII in the CRA—the portion that we will discuss here—prohibits discrimination based on race, national origin, religion, sex, genetic data, and age. People that come within these categories are said to be within a “protected class.” However, there are many other protected classes that also receive protection under various anti-discrimination laws. Where national discrimination regulations lack, there are many state and local laws that employ their own regulations concerning anti-discrimination, which will generally encompass more protections than what is provided at the national level. In this sense, state laws regarding employment discrimination are likely to provide more protection than what nation-wide regulations can provide, and nationwide Acts, such as the CRA, merely set the minimum standard and provide base-level protections.

Employment Discrimination: Prohibited Conduct under the CRA

Disparate Treatment and Disparate Impact Discrimination

     The CRA makes it illegal to discriminate against any applicant or employee during any phase or stage in the employment process, including the application and interviewing stage, hiring, demoting, promoting, terminating, and with respect to any other employment condition or privilege. The CRA not only prohibits intentional discrimination, known as disparate treatment discrimination, but it also prohibits unintentional discrimination, known as disparate impact discrimination. While it is generally understood what intentional discrimination means and what it looks like in practice, disparate impact discrimination is not as clear cut. Disparate impact discrimination occurs when an employment policy or practice—although not intended to be discriminatory or written in a discriminatory manner—disproportionately impacts a protected class. We’ll discuss this discrimination type at length later on in this article and recent legislative initiatives passed to counteract disparate impact policies in the workplace.

Harassment

     In addition to disparate treatment and disparate impact discrimination, the CRA also prohibits harassment. Harassment, unlike bullying, must be ongoing rather than an isolated incident to be illegal. For instance, one inappropriate slur—although it should not be condoned—is not likely to be deemed illegal or result in legal consequences. The behavior must: (1) create a hostile work environment; or (2) lead to an adverse employment decision such as demotion or termination. To that end, an applicant or employee cannot be retailed against based on any complaint raised concerning discrimination under the CRA.

Employment Policies on Harassing, Bullying, or Discriminatory Behavior

     Even though an occasional inappropriate remark or comment may not create legal repercussions, this does not mean that the conduct cannot be punished. Many employee handbooks have provisions and policies relating to workplace conduct which will prohibit harassing, bullying, or discriminatory behavior. It is reasonable to expect that any inappropriate or disruptive behavior that violates an employer’s standards will result in termination or some other appropriate discipline or corrective measure.

     For this reason, it is advisable to report any discriminatory behavior, even when it seems that it was only an isolated incident, that the victim was not distressed by the behavior, or that the victim and the harasser smoothed things over. Reporting any inappropriate, discriminatory conduct is truly the only way to ensure that anti-discriminatory polices are clear and understood, that managers and supervisors have retained adequate training on discrimination in the workplace, and that other employees will be discriminated against on the same basis—whether it be intentionally or unintentionally.

Extended Protection

     The CRA’s provisions also extend to employees who associate with those individuals that are within a protected class by marriage, direct relation (blood related), socially, etc. For example, suppose Marsha is an employee at ABC, Inc. She is a white woman who is married to a black man and the couple has biracial children together. When Marsha’s supervisor, who opposes opposite-race relationships, discovers that Marsha is married to an individual not within her own race and has bi-racial children, Marsha’s employment is terminated. Here, even though Marsha is white and is not within a protected class under the CRA (other than sex, which is not relevant here), Marsha can still bring a claim against her employer based on race discrimination because her termination was ultimately race related.

Employers that are Bound and not Bound by the CRA

     Surprisingly—although morally wrong—discrimination is permitted in some instances (or at least is not considered “illegal”). The CRA does not apply to certain employers or employment entities. Companies and labor unions who employ 15 employees or less, Federal Government employees, and independent contractors (who are not legally categorized as employees at all), do not have employees that receive the CRA’s protection. However, private companies and entities that do not come within these excluded categories are also bound by the CRA and cannot legally discriminate against any employee or prospective employees.

Private Companies

     The CRA applies to both public and private companies and prohibits discrimination based on race, religion, sex (pregnancy discrimination is read to protected under sex discrimination), and national origin, provided the employer employs 20 or more employers throughout 21 or more calendar weeks in the year. Private businesses and companies must also comply with the EPA.

State and Local Governments

     The CRA is applicable to state and local governments and prohibits discrimination based on race, religion, sex, national origin, (the topics covered here, not an exclusive list). provided it employs 15 or more employees throughout 21 calendar weeks in the year. Unlike private companies, state and local governments are prohibited in discriminating against an employee or potential employee based on age, pursuant to the ADEA, no matter how many employees the state and/or local governments employs throughout the year. In addition, the EPA, which will be discussed at length in a companion article, is also applicable to state and local governments. 

Employment Agencies

     The CRA is applicable to employment agencies and prohibits discrimination based on race, religion, sex, and national origin (the topics covered here, not an exclusive list), no matter how many employees it may have. When an employment agency regularly connects prospective employees with employers, they are bound by the CRA’s provisions, even where the employment agency is not being paid to make those connections. Additionally, employment agency cannot honor any biased or discriminatory practices that the employers they work with implement. These protections also extend to those individuals employed by employment agencies and an employment agency may not discriminate against its own employees with respect to wages, promotions, etc.

Unions and Apprenticeships

     The CRA is applicable to employee unions and labor organizations. Accordingly, these entities are prohibited in discriminating based on race, religion, sex, and national origin (the topics covered here, not an exclusive list), and disability, provided that the union or labor organization operates a hiring hall including 15 individuals or more. Because unions do not have a typical employer-employee setup, these anti-discrimination laws prohibit discriminatory conduct as an employer, in its bargaining capacity, in its role as a hiring hall, and in determining whether to deny membership.

     The CRA generally covers any labor-management committee that oversees training or retraining programs and services, such as an on-site training program. Other anti-discrimination regulations also apply to unions and apprenticeships. Generally, labor organizations cannot discriminate based on age where they operate a hiring hall with 25 members or more.

State and Local Anti-discrimination Laws

     As stated above, where employers may not be covered by the CRA and their policies do not have anti-discrimination provisions, several states and localities have the authority to implement their own anti-discrimination laws that must be complied with, and many states do. Accordingly, legal repercussions based on discrimination in the workplace are still possible at the state and local level. 

     Should an employee be unsure as to whether a particular employer is bound by the CRA’s provisions, they should not hesitate to seek the EEOC’s advice (to be discussed below) so that they may assist an employee in making the appropriate determination. The EEOC largely depends on employees to report discriminatory practices. When employees are unwilling to do so, discrimination can—and usually does—continue. Also, an employee should report any discriminatory conduct so that a claim may be pursed, when necessary, because, as discussed below, there are certain limitations on the period in which a complaint can be brought against an employer with the EEOC, so it is advisable to act quickly.

 The Equal Employment Opportunity Commission

     The Equal Employment Opportunity Commission (“EEOC”) is the government agency tasked with ensuring covered employers comply with anti-discrimination laws, including the CRA, the ADA, the PDA, the ADEA, and more. The EEOC is also charged with investigating employment discrimination claims brought against employers covered by the CRA (discussed above). Generally, an employee has 180 days to bring a complaint with the EEOC, with the measuring date being the date the discriminatory act or the adverse employment action occurred. However, employees who are employed by the Federal Government have much less time to bring a claim with the EEOC at only 45 days. Although 180 days is the standard with respect to non-Federal employees, this period may be shortened or lengthened by certain state regulations. Accordingly, it is important to stay apprised on your state regulations concerning the applicable period so that any potential complaint will not be time barred.

     When the EEOC discovers that alleged discrimination has occurred, the EEOC will work with the employer and employee to settle the charge without court involvement. However, when a claim cannot be resolved, the EEOC has the authority to bring a lawsuit against an employer to protect the employee and other employees who have already been discriminated against and employees that could be discriminated against later.

     When determining whether a lawsuit is necessary, the EEOC will consider the evidence that exists to support their claim and its relative strength, the issues in the case in the claim at issue, and a lawsuit’s potential impact on the EEOC mission to combat workplace discrimination. Ultimately, the EEOC is highly selective and does not take on many cases in relation to the claims that are brought to its attention each year. When a case is brought by the EEOC, the discriminatory action involved generally won’t be a close call and there will be substantial evidence showing that discrimination occurred, and the discrimination was quite egregious under the circumstances, even though the EEOC may not actually win every claim they pursue.

     It should be noted that bringing a charge with the EEOC will not expedite an employee’s claim. Bringing a claim with the EEOC and attempting to reach a resolution with EEOC assistance, is a long, drawn-out, and tedious process that could take years to resolve. For example, the real cases discussed below took sometimes eight years or more to be resolved.

Employer Consequences

     Employers who have been discovered to have discriminated against an employee under the CRA can deal with many more consequences than only litigation costs. Not only is a discrimination claim likely to impact an employer’s reputation in their industry, but the EEOC can impose steep monetary penalties. Where the employer is a small business, they can be ordered to pay up to $50,000. Where the employer is a larger business employing 500 employees or more, the business can be ordered to pay up to $300,000.

     For this reason, employers generally have an incentive to avoid discriminatory employment practices and are likely to address any complaints concerning discrimination in the workplace. While an employee who believes they have been discriminated against should consider bringing a complaint with the EEOC, the EEOC’s initial step will generally be to mediate the situation between the employer and the employee without court involvement or litigation. Accordingly, it is likely the best practice to speak with a supervisor or another appropriate person who can attempt to address any ongoing hostility or discrimination without additional involvement, except when necessary.

Race-Based Discrimination

     Although race discrimination may seem relatively simple, you may be surprised to know that there are many nuanced issues when it comes to race discrimination in the workplace. For example, discrimination can occur even where the employer acting in a discriminatory manner shares the same race as the employee being discriminated against. Same race discrimination has been acknowledged by the EEOC and is accordingly prohibited under the CRA’s provisions. In EEOC v. Renaissance III, No. 3:05-1063-B (N.D. Tex. July 19, 2006), black employees working at an HIV service center were discovered to have been discriminated against by the previous Executive Director, who was also black. The harassing behavior included, among other things, graphic language relating to race and racial slurs.

     Although white people are seen as rarely encountering discrimination and may statistically not be as likely to encounter workplace discrimination as other minority populations, discrimination against white employees does occur and is prohibited under the CRA. This discrimination type is known as reverse discrimination. For example, in EEOC v. Dots, LLC, No. 2:10-cv-00318-JVB-APR (N.D. Ind. June 3, 2011), the EEOC brought a lawsuit against a women’s clothing retailer—who eventually settled with the EEOC and agreed to pay 32 class members $246,000—where the retailer regularly denied employment to white applicants over a 4-year period. A store manager at the time had allegedly told a white applicant that the store “does not hire white people.”

     Many times, there is much than one discriminatory basis involved in employment discrimination cases. For example, an employee may be discriminated against based on both race and gender, age and race, etc. This is known as inter-sectional discrimination. In EEOC v. Wells Fargo Financial Michigan, Inc., Case No. 2:10-CV-13517 (E.D. Mich. Mar. 22, 2012), Wells Fargo Financial Michigan settled with the EEOC when the EEOC brought a lawsuit against them based on both age and race discrimination. A black, 47-year-old loan processor—who was objectively known as the go-to person concerning loan processing—was passed over to receive a promotion. Instead, Wells Fargo considered several women employees, all white and under 30 years old, despite all being overall less experienced and not having the same productivity scores as the black, 47-year-old employee.

     Another nuanced area in employment discrimination is code word discrimination. You may have seen this or experienced this, but likely didn’t have the terminology to express what had occurred. Generally, when discrimination occurs by “code word,” the discriminating employer will use certain language or phrases to apply a common trait or stereotype to a certain protected class or race. For example, in EEOC v. Gonnella Baking Co., Civil Action No. 15-cv-4892 (N.D. Ill. consent decree filed Jan. 10, 2017), Gonella Baking Co. settled with the EEOC when a complaint was brought by a black employee who had reported to his company—who never took action to the alleged discriminatory harassment—that various non-black co-workers would address the black employee by using code words or phrases such as “you people,” or make comments like, “I better watch my wallet around you.” This derogatory language is recognized as discrimination and is prohibited under the CRA.

National Origin-Based Discrimination

     The CRA prohibits discrimination based on national origin. Discrimination based on national origin includes any negative treatment due to the country which an employee originates, an employee’s ethnicity, an employee’s accent, the employee’s perceived ethnic background, and more. It is generally prohibited to discriminate against an employee or potential employee based on their accent unless the position at issue requires spoken communication and English and the employee’s accent materially impedes the employee’s ability to communicate in English. In addition, an employer can adopt English-only employment regulations only when English is necessary to the position in question and the purpose is nondiscriminatory in nature.

     A currently pending charge brought by the EEOC in 2015 against Antonella’s Restaurant and Pizzeria, Inc. alleges that Hispanic employees were required to work in a hostile environment by the restaurants’ co-owner, who on a regular basis, made slurs related to the employees’ national origin, required them to only speak English, and did not permit them to receive as many sick days or as much leave as other non-Hispanic employees. The charge also alleges that one employee was terminated in retaliation due to his complaint about the mistreatment. More cases involving discrimination on national origin can be viewed here.

Citizenship and Immigration Status

     Recognized as subcategory under national origin discrimination is discrimination based on citizenship and immigration status. It is illegal to discriminate against an individual based on citizenship or immigration status and is applicable to every stage in the employment process. Under IRCA, employers cannot deny employment to U.S. citizens or permanent residents, unless prohibited under some other applicable law, regulation, or government contract. Employers are bound to accept valid documentation showing an employee’s eligibility to work and cannot require additional documentation exceeding what is legally required under IRCA. Also, like the CRA, IRCA prohibits retaliation when an applicant or employee asserts their rights under IRCA’s provisions. Any complaints brought under the IRCA should be brought to the Immigrant and Employee Rights Division (“IER”), which is the agency charged with investigating claims brought under the IRCA and ensuring compliance with IRCA’s provisions.

Religious-Based Discrimination

     The CRA prohibits discrimination based on religion. The CRA not only protects traditional, organized religions, such as Christianity, Buddhism, etc., but it also protects “sincerely held” moral and ethical convictions as well. Likewise, the CRA also prohibits discrimination against employees who don’t practice a certain religion or any religion, such as those who are atheist or agnostic. When an employee brings a lawsuit against their employer alleging religious-based discrimination, a court will not question an employee’s particular religious practices or consider whether the employee’s religion is real. However, they can question whether the employee sincerely believes in the religion that they claim.

     To avoid violating the CRA and its provisions against religious discrimination, an employer must provide an employee who is exercising their religion with reasonable accommodations that allow the employee to abide by or participate in their religious practices. However, when providing reasonable accommodations would create an undue hardship on the employer’s business, an employer is not required to accommodate an employee’s religious practices. Whether accommodating an employee’s religious practices would create an undue hardship is determined on an individual, case-by case-basis, but some circumstances that may indicate an undue hardship include a decrease in workplace productivity, an impingement on other employees’ rights, other employees bearing a substantially higher workload (especially when the work is hazardous or burdensome), etc.

     While religious accommodations can extend to allowing an employee to leave work early or not come in to work to allow participation in certain recognized religious holidays or prayer times, many times, reasonable accommodations do not necessitate an employee’s absence.  Other common religious accommodations can be related to grooming (such as keeping a beard) or permitting certain religious garb. It should also be noted that a customers’ partiality or impartiality concerning employees who appear to have a certain national origin or appear to practice a certain religion cannot be considered when making employment-related determinations.

Employees Who are or Who are Perceived as Arab or Middle Eastern

     When examining the EEOC’s pending and resolved cases concerning alleged religious discrimination, it is apparent that many discriminatory practices are aimed at Arabic or Middle Eastern persons or perceived persons who practice Islam. In a religious context, intersectional discrimination, as discussed above, is typical in this area, as national origin and religion are closely related. Certainly, it is undeniable that the U.S. ’s dealings and relations with the Middle East have negatively impacted—generally without a solid basis—Americans’ perspectives on immigrants or American citizens who have Middle Eastern roots and or/heritage in combination with their religious practices. 

Discriminatory Practices in the Interviewing Process

     It can be challenging at times—especially when you have not been hired and were only interviewed—to really know why an employer did not decide to hire you. Because claims brought under the CRA are highly related to the circumstances involved, a potential candidate who believes they were not hired because they wear certain religious garb or practice a certain religion should consider inquiring with the employer about why their candidacy was not considered. The EEOC can also assist employees in this process by contacting the employer directly to garner the necessary details needed to help decide as to whether there was a discriminatory motive at play. Let’s consider an example.

A Real-World Hypothetical…

     For example, suppose Harold, who is a Sikh and practices the Sikh religion, applied to work in a customer service position at XYZ, Inc. The position would require Harold to work with both customers in-person and over the phone. Harold has exceptional customer service experience. However, there were many applicants applying to work in this position, around 80, and XYZ, Inc. is currently looking to hire only two customer service representatives. Harold is called to interview and the supervisor who will be interviewing him seemed excited about his prospects in working at XYZ, Inc over the phone.

     Harold wears traditional Sikh garb, including a kurtah, a long hanging coat (known as a choghah), and a turban. His hair and his beard are uncut. He wears his traditional garb and his uncut beard to the interview. The supervisor seems overall less impressed with Harold in-person than they did over the phone, and ultimately, Harold was not selected to work at XYZ, Inc. Although the supervisor made no comments relating to his religious practices or appearance, Harold believes that he was not chosen due to his perceived and actual religious practices and the appearance that his religion requires.

     In this scenario, it is hard to tell whether Harold was discriminated against based on his religion or perceived religious practices, and more details would need to be gathered to make an appropriate determination. There were many applicants, and it may be that Harold was not chosen because there were other applicants with more education, training, and experience. Maybe the supervisor had predetermined that they were looking to add an employee who is a little more talkative and aggressive with customer care and there was another candidate who seemed to be more adept at meeting those needs. Or it could be that the supervisor truly overlooked Harold due to his perceived or actual religious practices, particularly considering their interaction with him was much more pleasant with him over the phone than in person.

     In this case, it may be advisable to have Harold contact the EEOC so that they can help him garner more details and make an appropriate determination as to what the supervisor’s motive really was in deciding not to hire Harold. The EEOC will know what questions to ask. Maybe XYZ, Inc. has constantly denied employment to applicants with certain religious backgrounds, or maybe XYZ has shown a clear pattern in not hiring Arabic or Middle Eastern presenting employees. Ultimately, more details are needed to be certain.

Mixed-Motive Cases

     The above, real-world hypothetical leads us to another important, related issue: mixed motive cases. Many employers may try to evade liability under anti-discrimination laws by claiming that their motive was only partially based on a discriminatory consideration and that there were other viable, nondiscriminatory reasons to make the adverse employment decision, which is commonly known as “pretext.” However, Title VII is much broader than this and prohibits any discriminatory motive. Ultimately, to prove that the employer did not act in a discriminatory manner, they must show that they would have made the same adverse employment decision absent a discriminatory motive because there was a legitimate business reason to do so. When this can be proved, an employee will not be entitled to reinstatement, back-pay, or monetary damages.

     Using the same example as above, suppose that Harold was beat out because there truly were other candidates with more education, training, and experience and this substantially led to the determination not to hire Harold. However, it comes to light that the supervisor was concerned about Harold’s outward appearance, particularly the unkempt beard, and did not think that it would be received well by customers who would be working with Harold in-person.

     Here, the supervisor had a mixed motive in determining not to hire Harold. Even though there were nondiscriminatory reasons not to hire Harold, the consideration given to his beard, which is integral to his religion, was also a consideration in denying employment. These considerations are prohibited under the CRA, and Harold could potentially bring a claim against XYZ, Inc. with the EEOC and receive damages.

Employment Policies with a Disparate Impact

     Both lawmakers and the society at large recognize that while employment policies and regulations may not be written in a discriminatory manner and a plain reading alone does not necessitate discriminatory practices, employment policies and regulations can nonetheless have a discriminatory result when put into practice. This happenstance is known as a “disparate impact,” and polices creating a disparate impact with respect to classes protected under the CRA will generally not muster legal protection. Essentially, disparate impact is not based on intent behind the policy, it is based on the result. However, not all employment practices and policies with a disparate impact will be held illegal.

     For example, consider a police department that requires applicants to be able to carry 75 pounds or more to be considered. It is possible that many men may have an advantage concerning this particular requirement and men are disproportionately employed more than women applicants. However, it could be argued that being able to carry or hold 75 pounds is necessary to adequately carry out a Law Enforcement Officer’s duties. The equipment that must be strapped to a Law Enforcement Officer’s body can be heavy and many times other Law Enforcement Officer's must assist in rescue situations and may necessarily have to carry people, animals, or anything else that an emergency may present.

Proving Disparate Impact

     To prove a disparate impact case, an employee must show: (1) a particular employment practice caused a detriment to a protected class that was not experienced by those employees who are not within the protected class (this element may not be as easy to prove and may require some statistical analysis and long-term data collection); (2) the burden moves to the employer and the employer must show that the disparate policy was created with a legitimate business reason in mind; and (3) the burden is placed back on the employee to show that the employer could have achieved the particular business-related goal through other means that did not disproportionately impact a protected class.

     It should be noted that, when the burden is placed on the employer at step 2 and the employer cannot come up with a legitimate business reason in implementing a policy that creates a disparate impact, the employee wins their case. In other words, when the employer cannot meet their burden in proving a legitimate business-related reason to back the policy, the employee does not have to bear the burden in showing that some other similar policy would have been less discriminatory. The policy will be held to violate the CRA and the employer will be required to disband or rework the particular policy in question.

Disparate Impact Discrimination in Practice: Hairstyle Discrimination in the Workplace

     With society becoming more socially aware of implicit bias and how it can impact our everyday, commonplace decisions, new legislation is evolving to address these issues and to avoid policies that create a disparate impact. For example, a new Bill, the CROWN Act (HR 216), was recently passed in the House on March 18, 2022, and shows substantial advancements in the employment discrimination realm concerning disparate impact discrimination.

     The CROWN Act seeks to remedy and prevent the dismissal, denial to hire, and otherwise discriminatory acts in the workplace based on naturally textured hair and hairstyles, particularly as it relates to the black community. Although people exhibiting certain hairstyles or hair types are not within a plainly protected class pursuant to the CRA, discrimination in this area largely impacts black Americans who are a protected class under race and/or national origin, which allows legislators and the Courts to plainly read hair discrimination as coming within the CRA’s protection. Interestingly, because the CRA already recognizes race as a protected class, it is expected that many lawmakers at the state level may oppose the Bill and not implement their own protective policies, believing that it is not necessary to protect minorities in the workplace and would place and undue burden on employers who will necessarily need to revamp their company policies to comply with this new legislation.

     However, with many states having already passed and implemented their own CROWN Acts, and with the EEOC having already challenged many company policies with respect to grooming and appearance policies, courts are reviewing employee complaints made on this basis with more scrutiny towards employers. With this legislation already passed in several states and national passage on the horizon, many employers have been encouraged to reexamine their appearance policies and remove any language banning hairstyles typically associated with black or other minority individuals, such as braids, cornrows, or “twists,” and instead, encourage alternatives to an outright ban, such as hair ties and hair nets.

Conclusion

     The CRA is a sweeping legislative Act that covers many issues in the employment discrimination realm. While this article touches on the more basic issues relating to the CRA, there is much more to be learned and understood about its provisions. Anti-discrimination regulations are ever-changing, making it both a challenge to employees and employers alike to know their rights and know how to stay in compliance with anti-discrimination laws.  To assist employees and employers, the EEOC publishes many educational tools and materials that will not only assist employers in ensuring compliance with the CRA, but it will also assist employees in understanding the rights provided to them under the CRA as well.

     However, many employers arguably don’t need to read the CRA in its entirety to implement the best practices when it comes to avoiding discrimination (although they probably should read the CRA in its entirety nonetheless and read the guidance measures supplied by the EEOC). Treating others, the way you would want to be treated were you in their circumstances, avoiding assumptions, acknowledging your own implicit bias, and providing a listening ear and an open mind is generally all it takes to avoid discrimination, although this is generally easier said than done.

     Today, discrimination is alive and well in the workplace and it will take a widespread commitment to eliminate discrimination and to create an inclusive environment. Although the CRA has provided many protections relating to race, religion, national origin, and sex, the EEOC largely depends on those individuals protected by the CRA’s provisions to ensure employer compliance through by discriminatory conduct in the workplace.