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Nothing Hairy About It: California Senate Moves to Ban Grooming Policies That Discriminate Against African Americans

EmpDisc

Racial discrimination in the workplace has long been prohibited under federal and state law. But there are other, more subtle forms of discrimination that continue to persist. For example, many Californians–notably African-Americans–are viewed as “unprofessional” based on their hairstyles. More precisely, some employers impose grooming codes that effectively bar African-American employees from sporting natural hairstyles such as Afros, braids, and twists.

To remedy this, the California Senate recently adopted legislation (Senate Bill 188) to forbid such hair-based discrimination. The bill’s author, Sen. Holly J. Mitchell of Los Angeles, said she was prompted to act after a high school wrestler in New Jersey was forced to cut off his dreadlocks by a referee. Public outrage prompted condemnation from New Jersey officials and the opening of a formal civil rights investigation against the referee.

The introductory language to SB 188 notes that “hair has historically been one of many determining factors of a person’s race, and whether they were a second class citizen, hair today remains a proxy for race.” And workplace grooming policies often disfavor natural hairstyles common to African Americans in favor of “Eurocentric norms.”

Bill Would Protect “Braids, Locks, and Twists”

The substance of SB 188 does not actually create a new category of illegal discrimination. Rather, it clarifies that existing bans on race discrimination in housing, employment, and education include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” The bill further defines “protective hairstyles” to include “braids, locks, and twists.”

As a legislative analysis prepared by the California Senate staff explained, there have been prior cases where African-American employees, usually women, have attempted to sue employers for hair-based discrimination under the federal Civil Rights Act of 1964. But these cases have generally led courts to conclude that a person’s race or racial identity only extends to “immutable” characteristics such as skin color, but not hairstyle. In one such case from 1981, Rogers v. American Airlines, a judge in New York argued that while “an afro might be covered by the civil rights laws,” other common African-American hairstyles like braids were not, as the latter was “not the product of natural growth but of an artifice.”

Similarly, in 2011 a federal appeals court in Atlanta held that while “discrimination on the basis of black hair texture” was illegal, discrimination on the “basis of black hairstyle” was not.

But as the legislative analysis pointed out, employment policies that forbid certain black hairstyles imposes a “disparate impact” on African-American workers. For instance, according to one survey, “Black women report spending more time and money on their hair than their White counterparts,” due to the social pressure to conform to more Eurocentric beauty standards. In addition, the use of artificial chemicals to “straighten” African American hair often leads to serious side effects, including “skin and eye irritation, respiratory disorders, obesity, cancer, and reproductive health challenges.”

Employers Could Still Enforce “Non-Discriminatory” Grooming Policies

The Senate unanimously passed SB 188 on April 22, 2019. The bill must still be approved by the state Assembly and Gov. Gavin Newsom. It should be noted that in its present form, SB 188 would not outright ban on all employer grooming policies. But the burden would be on the employer to prove such policies exist for “valid, non-discriminatory reasons,” and do not create a “disparate impact” on African Americans.

If you have additional questions or concerns about how SB 188, or any existing law dealing with race discrimination in the workplace, may affect your rights, contact a qualified California employment discrimination attorney right away.

Sources:

leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB188

sd30.senate.ca.gov/news/news/2019-04-24-april-24-2019-usa-today-californias-crown-act-seeks-end-racial-discrimination

https://www.employmentrightscalifornia.com/waiting-too-long-to-object-supreme-court-rules-employer-lost-the-right-to-raise-technical-objection-to-title-vii-complaint/

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