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A bill that would expand California’s antidiscrimination law to forbid discrimination based on hair texture and hairstyles was unanimously approved by the California Assembly on Thursday, and now awaits Gov. Gavin Newsom’s signature.
The Crown Act, which amends the California Fair Employment and Housing Act - the state’s antidiscrimination law - and its education code, had unanimously passed the state Senate in April.
The legislation states “workplace dress codes and grooming policies that prohibit natural hair, including afros, braids, twists, and locks, have a disparate impact on Black individuals as these policies are more likely to deter Black applicants and burden or punish Black employees than any other group.”
It states federal courts accept that the federal Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, but “do not understand the afros are not the only natural presentation of Black hair. Black hair can also be naturally presented in braids, twists, and locks.”
It states the legislature “recognizes that continuing to enforce a Eurocentric image of professionalism through purportedly race-neutral grooming policies that disparately impact Black individuals and exclude them for some workplaces is in direct opposition to equity and opportunity for all.”
In February, the New York City Commission on Human Rights became the first U.S. agency to issue legal enforcement guidance outlining that appearance and grooming policies that ban natural hair or hairstyle are unlawful discriminatory treatment under the New York City Human Rights Law.
The guidance states that employers and providers of public accommodation such as fitness clubs and schools cannot force black people to change their natural hair as a requirement to be admitted or retail affiliation or employment.
Natalie B. Fujikawa, an associate with Fisher Phillips LLP in Sacramento, California, said the bill has not generated any opposition, and is expected to be signed into law by Gov. Newsom. A spokesman for the governor could not immediately be reached for comment.
It does not present a burden to employers and does not interfere with safety regulations, Ms. Fujikawa said.
She said the legislation may eventually prove influential elsewhere. “California has a reputation for being extremely progressive with regard to employment laws, and historically other states have eventually followed suit, although it’s unclear how quickly that would happen,” she said.
The issue has apparently not gained traction on the federal level. In 2013, the U.S. Equal Employment Opportunity Commission sued a catastrophic insurance claims company, Mobile, Alabama-based Catastrophe Management Solutions Inc. for allegedly discriminating against a black job applicant, Chastity Jones, by rescinding a job offer after she refused to cut off her dreadlocks.
But in September 2016, the 11th U.S. Circuit Court of Appeals in Atlanta affirmed a lower court ruling dismissing the case. The decision said, “our precedent holds that Title VII prohibits discrimination based on immutable traits, and the proposed amended complaint does not assert that dreadlocks – though culturally associated with race – are an immutable characteristic of black persons.”
In December 2017, the appeals court voted against an en banc rehearing of the case. A concurring opinion said, “banning dreadlocks in the workplace under a race-neutral grooming policy – without more – does not constitute intentional race-based discrimination.”
A dissenting opinion on whether the case should be heard en banc cites the Supreme Court’s 1989 ruling in Price Waterhouse v. Hopkins, in which the Supreme Court held plaintiffs can rely on gender-stereotyping evidence to show that discrimination occurred. The immutable trait requirement “is no longer good law, and Ms. Jones’ panel was wrong to invoke it,” it stated.
The Supreme Court subsequently refused certiorari in the case.
The New York City Commission on Human Rights felt compelled to stress to employers that city law prohibits them from discriminating against employees or potential employees based on their natural hairstyles after several employment-related incidents alleging racial discrimination.