Question: My business has a grooming policy that requires our employees to maintain a professional appearance, including employees’ hairstyles. I heard California just passed a new law protecting employees with “natural” hairstyles. What exactly does that mean?

 

Answer: On July 3, 2019, Governor Gavin Newsom signed a new bill that bans employers and school officials from discriminating against individuals based on natural hair and hairstyles associated with race. Senate Bill 188, referred to as the CROWN Act (Create a Respectful and Open Workplace for Natural Hair) protects the right of individuals to wear their hair in its natural form in the workplace or school.  This bill is specifically drafted to address, “purportedly race-neutral grooming policies that disparately impact Black individuals and exclude them from some workplaces.”

 

Currently, the Fair Employment and Housing Act (FEHA) makes it unlawful for California employers to engage in discriminatory practices based on certain protected characteristics, including race. The CROWN Act provides that the definition of “race” under FEHA includes “traits historically associated with race, including but not limited to, hair texture and protective hairstyles.”  The term “protective hairstyles” includes, but is not limited to, such hairstyles as braids, locks, and twists.

 

This new law does not prevent employers from making and enforcing grooming policies that require employees to maintain a “professional” appearance, but it does prohibit employers from considering natural hairstyles historically associated with race, such as braids, locks, and twists, to be “unprofessional.” The bill’s preamble speaks to societal norms in the United States that have historically equated “blackness” and the associated physical traits “to a badge of inferiority, sometimes subject to separate and unequal treatment.”  This idea, the bill explains, has also permeated societal understanding of professionalism. “Professionalism was, and still is, closely linked to European features and mannerisms, which entails that those who do not naturally fall into Eurocentric norms must alter their appearances, sometimes drastically and permanently, in order to be deemed professional.”

 

Employers may continue to implement grooming and appearance policies that include employee hairstyles, so long as they are non-discriminatory and have no disparate impact on any protected class. The policy should not explicitly prohibit hairstyles that are historically associated with race, such as Afros, braids, locks, twists, and cornrows.  Any restrictions on hairstyle should be driven by legitimate and objective business needs that are stated in the policy.  If hairstyles have previously been restricted at the workplace due to health and safety concerns, employers should consider alternatives, such as hairnets, hair ties, and safety equipment.  Employers should keep in mind that they may also be required to accommodate employees’ religious beliefs by allowing them to wear head coverings and other items if the accommodation does not place an undue burden on the employer.  As with any policy, employers should take care to implement grooming and appearance policies in a fair and consistent manner with all employees.

 

California’s new law will take effect on January 1, 2020 and it applies to public schools, private employers with five or more employees, and public employers. It does not apply to religious associations or nonprofit organizations. Since Senate Bill 188 was signed into law on July 3, the state of New York has also followed suit, becoming the second state in the United States to ban discrimination based on natural hair or hairstyles.