Hair Today…Discrimination Tomorrow? California and New York Adopt Hair Style Protections, Others Surely to Follow

On July 3, 2019, California Governor Gavin Newsom approved Senate Bill No. 188 providing legal protection from discrimination in the workplace and in public schools for natural and protective hairstyles historically worn by black people and people of color. This bill expanded the scope of what is considered a protected race category under the California Fair Employment and Housing Act to include traits "historically associated with race, including, but not limited to, hair texture and protective hairstyles." Following California's lead, New York then became the second state to ban discrimination based on natural hairstyles on July 12, 2019, when Governor Andrew Cuomo signed into law S.6209A/A.7797A, which amends the Human Rights Law and Dignity for All Students Act. There is now proposed legislation in New Jersey as well, modeled after Senate Bill No. 188. This means employers in other states should take a hard look at their workplace hair and grooming policies to avoid discrimination actions.

California

California's bill, also known as the CROWN Act (Creating a Respectful and Open Workplace for Natural Hair), passed unanimously in both the California Assembly and Senate before the governor signed it into law. In SB188, the legislature noted the public policy and history of racism in this country by specifically discussing how "blackness," and associated traits such as kinky and curly hair have historically served as a "badge of inferiority." The bill also discusses the Eurocentric traditions and norms of what has traditionally been considered "professional" appearance and grooming and states that the hair of black people and people of color remains a source of discrimination with serious economic and health consequences. 

SB188 specifically prohibits any workplace dress code or grooming policy that prohibits "natural hair, including afros, braids, twists and locks." While afros have been found by Federal courts to be protected under Title VII of the Civil Rights Act, the bill notes that there are many other presentations of black hair that are still the subject of dispute. SB188 finds that hair can be a proxy for race; therefore, discrimination targeting hairstyles is racial discrimination. Race neutral grooming policies are really Eurocentric policies that negatively affect people of color.

SB188 goes on to formally amend the Education and Government Codes to define "race" as inclusive of traits historically associated with race, including hair texture and protective styles. Protective hairstyles are defined to include, but not be limited to, braids, locks and twists.

The California bill's author, Sen. Holly Mitchell, said "The new protection provides all Californians the right to wear natural hairstyles without fear of repercussions. Students will be able to go to school, and workers do their jobs, without feeling pressure to change their appearance based on someone else's 'comfort level.'"

New York

The Bill signed into law by Governor Cuomo amended section 292 of the Human Rights Law and section 11 of the Dignity for All Students Act to add new subsections to the definitions of race which include "traits historically associated with race, including but not limited to hair texture and protective hairstyles." Its goal and effect are the same as the California Senate Bill.

Employers in other states should anticipate and prepare for the possibility of similar laws which might be passed protecting the hair styles of their employees. Review your workplace hair and grooming policies now to avoid discrimination actions.