This past week marked not only the anniversary of our Independence Day, but also the 55th anniversary of the enactment of the Civil Rights Act of 1964. Amidst this well-deserved fanfare, California became the first state to make hairstyle a protected status under its state anti-discrimination law, the Fair Employment and Housing Act (FEHA).
Presently, employers who take actions based on an individual’s headwear, when worn for religious reasons (such as yarmulkes or hijabs), may be in violation of federal law. Indeed, as the Supreme Court observed in EEOC v. Abercrombie & Fitch, “Title VII requires otherwise-neutral policies to give way to the need for an accommodation.” It follows logically that if an employer refuses to allow such headwear in the workplace, the employer must establish that making a reasonable accommodation would have posed an undue hardship on its operations in order to pass legal scrutiny.
The California legislature has expanded on this federal foundation. Observing that race discrimination has long been unlawful, and that federal courts have accepted that discrimination against an individual who is wearing an Afro can be a proxy for race-based discrimination, the legislature determined that “[w]orkplace dress code 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.” Accordingly, effective January 1, 2020, California law will prohibit race discrimination based not only on ancestry, color, and ethnic background, but also discrimination based on “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles” such as “braids, locks, and twists” (think: dreadlocks, cornrows, and other similar hairstyles).
Part of the rationale, according to bill sponsor Holly Mitchell, is that “natural hair for African Americans is a natural, innate trait,” just as much as an individual’s height or other genetically coded information. That said, employers are still permitted to set race-neutral grooming rules — including, for example, requiring that hair be secured for hygienic reasons (think: requiring hairnets in the food service or housekeeping arenas, just to name a couple of examples).
California becomes the first state (along with the cities of Chicago and New York City) to prohibit hairstyle-based discrimination, but it very likely will not be the last. In the meantime, employers should ensure that their workplace grooming or dress code policies do not categorically ban such hairstyles. Employers should also be mindful that, as with other workplace accommodations, it is often necessary to evaluate on a case-by-case basis whether an individual can maintain that hairstyle without posing undue health or safety concerns.