By Camille Hamilton Pating and Yuki Cruse
July 9, 2019 - SHRM
California has joined New York City to become the first state to
protect employees from discrimination based on natural hair and hairstyles
associated with race.
SB 188, known as the CROWN Act, seeks to "create a respectful and open workplace for natural hair." The bill unanimously passed the California State Senate on April 22 and the State Assembly on June 27. Gov. Gavin Newsom signed it into law July 3. SB 188 was introduced by Los Angeles Democratic Sen. Holly J. Mitchell, who said the bill will encourage schools and businesses to create grooming and appearance policies "that will foster inclusion and diversity."
The bill will protect employees who wear their natural Afro-textured curly hair in an un-straightened (hence, "natural") style and will address the issue of "black employees and applicants denied employment or promotion—even terminated—because of the way they choose to wear their hair," Mitchell said.
Negative stereotypes and perceptions of natural hair can be reflected in connotations of what "professionalism" means. According to SB 188, "Professionalism was, and still is, closely linked to European features and mannerisms, which entails that those who do not naturally fall into Eurocentric norms must alter their appearances, sometimes drastically and permanently, in order to be deemed professional."
Currently, the California Fair Employment and Housing Act (FEHA) makes it unlawful for employers to engage in discriminatory practices based on certain protected characteristics, including race. The CROWN Act will further provide that the definition of "race" under FEHA would include "traits historically associated with race, including but not limited to, hair texture and protective hairstyles." The bill defines "protective hairstyles" to include hairstyles frequently worn by black employees, such as "braids, locks, and twists."
The bill applies to public schools, private employers with five or more employees, and public employers. It excludes religious associations and nonprofit organizations.
Grooming and Appearance Policies
Many employers maintain grooming and appearance policies that regulate hairstyles, facial hair, jewelry, tattoos, piercings, makeup, nails, head coverings and clothing. While California law allows employers to regulate appearance, employers may not implement employee policies that appear to discriminate based on age, disability, race, religion, sex or certain other protected categories. Employers may also be required to accommodate employees' religious beliefs by allowing them to wear head coverings and other items if the accommodation does not place an undue burden on the employer.
The Equal Employment Opportunity Commission (EEOC) recently has challenged grooming and appearance policies for targeting certain hairstyles associated with race, and such policies are facing increased scrutiny from courts.
Employers need to be aware of state and local legal developments that create potential liability even though there is no legal precedent in federal court protecting workers based on hair or hairstyles.
The leading federal circuit court case concerning hairstyles isEEOC v. Catastrophe Management Solutions. The EEOC brought a Title VII claim against an Alabama insurance company alleging racial discrimination against a black woman whose job offer was withdrawn because she refused to cut her natural dreadlocks.
According to court records, the woman applied to work as a customer service representative, interviewed for the position and was hired. When she met with the HR manager to discuss a scheduling conflict, the HR manager asked if she had her hair in dreadlocks. She said yes, and the HR manager replied that the company could not hire her with the dreadlocks. When she asked why, the HR manager replied that "they tend to get messy, although I'm not saying yours are, but you know what I'm talking about."
The federal district court dismissed the EEOC's claim on the ground that racial discrimination under Title VII must be based on immutable characteristics that a person cannot change, such as skin color, and the court found that hairstyles can be changed.
After the 11th U.S. Circuit Court of Appeals affirmed the decision, the NAACP Legal Defense and Educational Fund filed a petition to the U.S. Supreme Court, but the petition was denied. Although EEOC v. Catastrophe Management Solutions is still applicable law in the 11th Circuit, which covers Alabama, Florida and Georgia, employers should remember that local anti-discrimination laws might differ from the federal circuit court's ruling.
Best Practices
Employers may implement personnel policies that highlight acceptable grooming and appearance standards for employees. However, employers should be mindful when drafting, reviewing and enforcing such policies because they must be nondiscriminatory and should not have a disproportionate impact on employees in a legally protected category. Employers should conduct periodic audits to assess whether a policy disparately impacts a group of people in a protected category.
Policies should not explicitly prohibit hairstyles that are historically associated with race, such as Afros, cornrows, braids, locks or twists. Employers should consider alternatives, such as hair ties, hairnets and safety equipment, when addressing health and safety concerns.
Grooming and appearance policies should:
Camille Hamilton Pating and Yuki Cruse are attorneys with Meyers Nave in Oakland, Calif.