What Insurers Should Know About Potential Claims Based on Hair Discrimination

Episode Notes

Transcript

John Czuba:  Welcome to “Best’s Insurance Law Podcast” the broadcast about timely and important legal issues affecting the insurance industry. I’m John Czuba, managing editor of Best’s Insurance Professional Resources.

We’re pleased to have with us today attorney Al Goldberger. Al is a New Jersey attorney and veteran sports official with more than three decades’ experience officiating college and high school basketball and baseball and also high school football. He officiated college and high school basketball for over 30 years.

He also umpired college baseball for the Eastern College Athletic Conference and worked as a high school football official throughout the state of New Jersey. Al is the author of “Sports Officiating  A Legal Guide,” the recognized authority on the law for referees, umpires, and those who supervise their services.

Based in suburban Fairfield, New Jersey, Al is a member of the New Jersey, New York, and Maryland Bar — counseling clients nationwide in sports industry and athletic risk management and liability defense, officiating program management, business related disputes, administrative hearings, and contractual relations.

Al also serves as parliamentarian and legal counsel to the International Association of Approved Basketball Officials. He’s also a frequent speaker to officials, coaches, athletic administrators, attorneys, and others involved in sports, including colleges, universities, and school districts, nationally.

Al also serves as an adjunct instructor in the Fairleigh Dickinson University Sports Management program. In addition to Sports Officiating  A Legal Guide now in its second edition, he is also coauthor of “Sport, Physical Activity, and the Law,” a college textbook which is now in its third edition.

Al Goldberger:  Thank you, John. It’s good to be with you again.

[crosstalk]

John:  Al, thank you for joining us again today. Today’s discussion will be on the CROWN laws and the impact on sports legislation. Al, for our first question, what are the CROWN laws, and how does the legislation affect sports?

[crosstalk]

Al:  John, as we approach the end of 2022, state laws known as CROWN acts reflect the lawmakers’ beliefs that discrimination on the basis of one’s hairstyle is, in most cases, the equivalent of race discrimination. The acronym CROWN stands for “Creating a Respectful and Open World for Natural Hair.”

Such laws have been enacted in about 19 states with additional legislation pending; and more than two dozen municipalities and counties have enacted similar ordinances and regulations.

The CROWN laws are probably best described as legislative amendments to state civil rights laws that primarily focus on proscribing racial discrimination based upon certain natural or protective hairstyles and adornments when those hairstyles represent traits that are commonly and historically associated with race.

These hairstyles typically would involve things like tightly curled hair worn in locs, cornrows, twists, braids, Bantu knots, afros, or similar. These laws affect sports in the states involved in profound ways — as students who, based on their choice of hairstyles, have been deprived of equal opportunities to play sports are often among those affected by systemic racism.

Members of Congress have recognized discrimination against persons whose hairstyles are reflective of traits that are historically or commonly associated with race. H.R.2116 passed the House of Representatives in March of this year and is awaiting Senate action.

In the past few years, though, state and local legislation has increased to the point where CROWN Acts or related local regulation exist in some form in most states.

The effect on sports played by young people is profound, as rules makers in a number of sports have been forced to reexamine what they maintain are safety based restrictions on hair adornments and even hairstyles so as to not run afoul of the new legislation.

John:  Al, what should organizations know about the laws in particular?

Al:  John, in the sports context, students who are barred from participation because of their hairstyle may well appear with mom and dad in tow at states civil rights agencies and courthouses.

As a result, any number of potential defendants could develop a claims history if precautions are not taken. For example, the Massachusetts CROWN law, now in effect for about a month, deals directly with sport and even names names. I’m going to quote.

“A school district, school committee, public school, nonsectarian school, the Massachusetts Interscholastic Athletic Association, or any equivalent school organization, or an entity or board that provides athletic officials, including …referees and umpires for school sports or athletics events, shall not adopt or implement a policy or code, including, but not limited to, any policy or code pertaining to a student’s participation in sports or athletic events, that impairs or prohibits a hairstyle that is historically associated with race.”

Now, all CROWN laws may not be so sports specific, but for the most part, the CROWN laws include students in the class of persons afforded redress for race discrimination.

John:  Al, do the laws apply to only certain levels of athletic competition? How would claims of violations be characterized, and are these laws tied to civil rights legislation?

Al:  As to CROWN laws’  application to various levels of sport: with nearly 30 state and local laws and regulations and ordinances, it can be argued that most participants in athletics fall somewhere in the range of student to employee, both of which categories are within the ambit of civil rights laws of which the CROWN laws are one in the states involved.

They are civil rights regulation, and most levels probably would find some protected persons.

For its part, the prevailing view from the federal government standpoint seems to be that discrimination on the basis of traits historically associated with race, such as natural or protective hairstyles that people of African descent are commonly adorned with violates existing federal law, including provisions of the Civil Rights Act of 1964 and various other laws.

Some attorneys argue that federal courts have sometimes misinterpreted existing federal civil rights law by narrowly interpreting the meaning of race or national origin. This type of interpretation, combined with the remedial nature of civil rights laws, generally casts a wide net if history is any teacher. Still, with only a couple of years under our belt, case law has yet to develop in this area.

John:  Al, are only sports affected?

Al:  Definitely not, John. In fact, at first glance, the laws being— civil rights law extensions are often couched in the labor/employer employee rights sections, sometimes with broad definitions of covered persons, and sometimes with cross references to educational institutions or students or public accommodations.

As race discrimination, unfortunately, persists as a blight in the workplace and other cultural venues; and while sports are certainly not the sole focus of the CROWN laws, race discrimination that prevents the student athlete from participating is a main focus of the child and the parents involved.

John:  Al, how can organizations prevent claims? What are the impediments in terms of sports, and how can sports insureds maintain a risk-averse balance between safety and rules-based restrictions in athletic competition?

Al:  John, the answers to this are found primarily in the rules of the game and specifically the interpretations of those rules, so as not to violate the law of the jurisdiction in which the game is played.

In other words, sponsors of athletic competitions and accredited game officials need to be on the same page as to balancing the rules that govern the game with current legal requirements where the game is played.

As those involved with interscholastic and youth sports have seen in areas of various accommodations for athletes in the areas of disabilities, medical and religious accommodations, and the like, compliance in an athletic setting, can be problematic. EPLI claims may well ensue, but as in any other civil rights environment, the insured’s awareness of legal requirements is a continuing challenge.

John:  Al, thanks so much for joining us today.

Al:  Thank you, John. Good to be with you.

John:  You’ve just listened to Attorney Al Goldberger, who is located in New Jersey, and special thanks to today’s producer, Frank Vowinkel. Thank you all for joining us for Best’s Insurance Law Podcast.

To subscribe to this audio program, go to our web page. If you have any suggestions for a future topic regarding an insurance law case or issue, please email us at [email protected]. I’m John Czuba, and now this message.