On April 22, 2019, the California Senate voted unanimously to update California’s anti-discrimination laws to include within the definition of the term “race” “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” If the bill ultimately becomes law, California would become one of the first states in the nation to prohibit racial discrimination because of hairstyles.
Both California and federal laws are replete with laws prohibiting discrimination on the basis of race and other protected characteristics. While those laws have been extended to protect certain religious headwear, courts have generally been reluctant to broaden those laws to protect non-religious hairstyles due to the position that such hairstyles are voluntary and nonpermanent. California Senator Holly Mitchell, a Los Angeles Democrat, introduced SB 188 out of a concern that this reluctance allowed the proliferation of employer grooming standards that disproportionally affect African Americans and equate acceptable workplace grooming with majority standards of beauty.
While the bill was introduced to address legitimate and reasonable concerns about discrimination and the existence of both explicit and implicit bias in the workplace, some employers and commentators have expressed concerns that this new law could lead to frivolous claims or restrict an employer’s ability to require workers to wear certain protective coverings in the workplace.
Regardless of where you may stand on this issue, SB 188’s unanimous passage in the Senate portends the passage of this bill into law. If and when that happens, employers with operations in California should take steps to update their policies and handbooks to ensure compliance. This would include rethinking any grooming polices requiring employees to alter the appearance of their hair to conform to traditional appearance standards. As for non-California employers, they should also keep a careful eye on this bill’s progress due to California’s status as a trendsetter in the area of employee rights.