Race Discrimination Includes Hair Discrimination

The Governor of California approved SB 188, known as the CROWN Act, in July 2019 to amend anti-discrimination laws in the areas of education, employment, and housing.

Hair As a Proxy for Race

In the employment context, the bill noted that in U.S. society, hair has historically been one of many determining factors of a person’s race and that hair today remains a proxy for race. Workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks, have a disparate impact on Black individuals as these policies are more likely to deter Black applicants and burden or punish Black employees than any other group. Thus, hair discrimination targeting hairstyles associated with race is racial discrimination.

California’s Anti-Discrimination Law

To review, under the California Fair Employment and Housing Act (FEHA), it is unlawful to engage in specified discriminatory employment practices, including hiring, promotion, and termination based on certain protected characteristics, including race, unless based on a bona fide occupational qualification or applicable security regulations. FEHA also prohibits housing discrimination based on specified personal characteristics, including race. It also prohibits discrimination because of a perception that a person has one of those protected characteristics or is associated with a person who has, or is perceived to have, any of those characteristics. Existing law defines terms such as race, religious beliefs, and sex, among others, for purposes of the act.

Racial Discrimination Expanded to Protect Hair Discrimination

The bill is an effort to address dress and grooming codes that appear race neutral on its face, but have the effect of disparately impacting a particular race.  The bill amends the Education Code and the Fair Employment and Housing Act to clarify that the protected class of “Race” includes traits historically associated with race, including, but not limited to, hair texture and protective hairstyles. Section 212.1 of the Education Code and Section 12926 of the Government Code define “protective hairstyles” to include, but is not limited to, such hairstyles as braids, locks, and twists.  

Employers may still generally maintain dress and grooming policies that require employees to secure their hair for safety and hygienic reasons.  The central test of the dress and grooming policies will be whether they are non-discriminatory and whether they would disparately impact a particular race.

PRACTICAL TIP:  California employers should review their dress and grooming policies for issues that might relate to the CROWN Act or other compliance issues. 

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In: Employment Law, New Laws, Uncategorized

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