Oregon Enacts Employment Protections for Hairstyles and Other Physical Characteristics Historically Associated With Race

On June 11, 2021, Oregon Governor Kate Brown signed into law House Bill 2935, also known as the CROWN Act (Creating a Respectful and Open World for Natural Hair), joining several other states in explicitly prohibiting employers and public schools from discriminating against individuals based on physical characteristics historically associated with race, including hair texture and protective hairstyles. The act will take effect on January 1, 2022.

The act amends the Oregon Equality Act, which prohibits discrimination in employment, by including a new definition of “race” that “includes physical characteristics that are historically associated with race, including but not limited to natural hair, hair texture, hair type and protective hairstyles.” It further defines “protective hairstyles” to include any “hairstyle, hair color or manner of wearing hair that includes, but is not limited to, braids, regardless of whether the braids are created with extensions or styled with adornments, locs and twists.” While promoted as an act to end discrimination against individuals with hairstyles historically associated with race, the legislation does not appear to limit the definition of “physical characteristics historically associated with race” to hairstyles and may include other physical traits. The act does not define what other physical characteristics the law specifically protects.

The act also amends the existing statutory provision that allows an employer to enforce “an otherwise valid dress code or policy, as long as the employer provides, on a case-by-case basis, for reasonable accommodation of an individual based on the health and safety needs of the individual.” The act adds that an employer’s otherwise valid dress code or policy may “not have a disproportionate adverse impact on members of a protected class to a greater extent than the policy impacts persons generally.” Notably, this provision applies to all protected classes.

Existing Oregon law prohibiting race discrimination in employment may already prohibit discriminatory conduct or disproportionate impact based on race-related hairstyles or other physical characteristics. The CROWN Act explicitly confirms such protections. Oregon employers that have not done so already may want to take steps to ensure that their antidiscrimination and dress and grooming codes, policies, practices, and trainings comply with these provisions by January 1, 2022.

The act also extends similar protections in public schools and limits the authority of a public school district to become a member of a voluntary organization that administers interscholastic activities unless the organization implements “equity focused policies” that meet certain requirements. Those requirements include prohibiting discrimination, permitting “student[s] to wear religious clothing in accordance with [their] sincerely held religious belief[s],” and balancing “the health, safety and reasonable accommodation needs of participants on an activity-by-activity basis.”

For an overview of the latest changes to Oregon employment law and workplace guidance, including developments related to the COVID-19 pandemic, please join us for our upcoming webinar, “Oregon Legislative Update: Employment Law and the COVID-19 Pandemic,” which will take place on Wednesday, July 14, 2021, from 11:00 a.m. to noon Pacific. The speakers will discuss recent legislative changes to Oregon’s discrimination, leave, and noncompete laws, as well as other workplace laws. The speakers will also cover the latest Oregon Health Authority and Oregon Occupational Safety and Health agency workplace guidance relating to COVID-19. Register here. Ogletree Deakins will continue to monitor new and pending legislation in Oregon and will post updates on the firm’s Oregon blog. Important information for employers is also available via the firm’s podcast programs.