SB 188 Makes California the First State to Ban Discrimination Based on Natural Hairstyles
Senate Bill 188 (SB 188) expands California anti-discrimination law to prohibit discrimination against employees or students on the basis of their natural or protective hairstyles, declaring such discrimination is a proxy for racial discrimination. Passed unanimously by both chambers of the Legislature and signed by Governor Newsom on July 3, 2019, SB 188 will Create a Respectful and Open Workplace for Natural hair (CROWN) by expanding the definition of race in California’s Fair Employment and Housing Act (FEHA) and anti-discrimination provisions of the Education Code. The expanded definition of race is now “inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles” such as braids, locks, and twists.
The CROWN Act also deliberately diverges from federal case law regarding hair discrimination, which has only considered an afro to be a “natural” hairstyle. (See Rogers v. Am. Airlines, Inc. (S.D.N.Y. 1981) 527 F.Supp. 229.) The bill effectively clarifies that California will not adopt the “immutability” test that federal courts have used in hair discrimination cases. Federal courts have held that employers may prohibit any hairstyle that is not “immutable,” and the narrow definition of such immutable hairstyles does not include braids or hairstyles a person “chooses.” (See Ibid.) By prohibiting discrimination based on a wider variety of natural hairstyles, the Legislature has declared that the determination of whether or not a hairstyle is “immutable” turns on whether the hairstyle at issue is central and fundamental to a person’s identity, rather than whether someone could possibly choose an alternative hairstyle.
Practically, if employers or public schools currently have appearance policies that are imposed for valid, non-discriminatory reasons and apply those policies uniformly, without any disparate impact, the policies are most likely legal and will remain so following SB 188. (See Gov. Code, § 12940.) However, SB 188 does prohibit an employer or public school from enacting a policy that explicitly prohibits the wearing of natural hairstyles, such as braids, dreadlocks, or twists. Facially neutral appearance policies that are enforced in a way which effectively prohibits such hairstyles will also be prohibited when SB 188 takes effect on January 1, 2020.
Banning discriminatory treatment of employees and students based on their chosen natural hairstyles is not a dramatic departure from current anti-discrimination law, but is a step toward serving the Legislature’s stated intent of not forcing employees to abandon part of their identity in service to “a Eurocentric image of professionalism.”
Based on this new law, employers and school districts should examine their policies to appearance and grooming policies to determine whether they will stand up to scrutiny once the new law takes effect.
Questions
If you have any questions concerning this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.
David Tyra
dtyra@kmtg.com | 916.321.4594