Key Takeaways:

• California and New York are the first states to ban racial discrimination based on natural hair

• Both state’s laws address unfair grooming policies that have a disparate impact on women and people of color

• Employers are still able to make and enforce certain policies, as long as they are valid and non-discriminatory, and have no disparate impact

On July 3, 2019, Gov. Gavin Newsom signed Senate Bill No. 188 (SB188) to make California the first state in the nation to ban racial discrimination based on natural hair. New York followed soon thereafter when Gov. Andrew Cuomo signed Assembly Bill 07797 (S.6209A/A.7797A) on July 12, 2019 to ban discrimination against hair styles or textures associated with race. California and New York are the first two states to amend existing laws to add subsections that will include hair in its definition of race.

California

Authored by California Senator Holly Mitchell, The Creating a Respectful and Open Workplace for Natural Hair (CROWN) Act addresses unfair grooming policies that have a disparate impact on women and people of color. The new law amends the California Fair Employment and Housing Act (Section 12926 of the Government Code) and Section 212.1 of the California Education Code to prohibit employers and schools from enforcing purportedly “race neutral” grooming policies that disproportionately impact persons of color. Under this bill, employers would still be able to make and enforce certain policies, insofar as they are valid and non-discriminatory, and have no disparate impact; for example, employers can still require employees to secure their hair for safety or hygienic reasons.

In its text, SB188 specifically references a “societal understanding of professionalism” that 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.” It recalls that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, and therefore, protects against discrimination against afros; but “the courts do not understand that afros are not the only natural presentation of Black hair,” which also includes, “braids, twists, and locks.” Accordingly, the Education Code will specifically include hair texture and protective hairstyles as included in its definition of “race.” “Protective hairstyles” includes braids, locks, and twists. Government Code Section 12926 amends and adds this same language. Employers should be mindful that any policies with respect to grooming or appearance in the workplace be based on a “bona fide occupational qualification or applicable security regulations,” such as reasons of health and safety, versus subjective recommendations of what constitutes a “professional” appearance.

New York

Based on The CROWN Act, S.6209A/A.7797A amends section 292 of the New York Human Rights Law and section 11 of the Dignity for All Students Act by defining race to include “traits historically associated with race, including but not limited to hair texture and protective hairstyles.” Like its California analog, the amendment defines protective hairstyles to include, but not be limited to, “braids, locks, and twists.” Previously, the Dignity for All Students Act was signed into law on September 13, 2010 and specifically seeks to provide students a safe and supportive environment “free from discrimination, intimidation, taunting, harassment, and bullying on school property, a school bus, and/or at a school function.” The new amendments to the Human Rights Law and Dignity for All Students Act take effect immediately.

Conclusion

While California and New York will be the first states in the nation to protect employees from racial discrimination based on hairstyle, similar legislation has been proposed in New Jersey. New York City banned hair-based discrimination in guidelines issued by the New York City Commission on Human Rights in February. These new protections are twofold in covering both school and the workplace, and employers with multistate operations may expect other states to quickly follow suit.

To learn more about how this new statutory language, its enactment, and interpretation might affect your business practices, please contact:

• Karen Luh
• Caroline J. Berdzik
• Peter J. Woo
• Kristin Klein Wheaton
• Or another member of our Employment and Labor Practice Group