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Governor Signs SB 188 Prohibiting Discrimination Based on One’s Natural Hair

Client Alert

On July 3, 2019, Governor Newsom signed into law Senate Bill 188, also known as the CROWN Act (Create a Respectful and Open Workplace for Natural Hair). SB 188, which is effective January 1, 2020, seeks to protect employees and students from discrimination based on natural hair and hairstyles associated with race. With the signing of SB 188, California becomes the first state to ban discrimination based on one’s natural hair.

SB 188

The Fair Employment and Housing Act and the Education Code both provide protections against discrimination based on certain personal characteristics, including race. SB 188 expands the definition of “race” in both of these laws to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” The law continues to specify that “protective hairstyles” “includes but is not limited to, such hairstyles as braids, locks, and twists.”

The bill was introduced by State Senator Holly J. Mitchell to prevent the unequal treatment of students and employees due to their natural hair texture and race-related hairstyles. SB 188 notes that “hair remains a rampant source of racial discrimination with serious economic and health consequences, especially for Black individuals.” It continues by stating, “workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks, have a disparate impact on Black individuals as these polices are more likely to deter Black applicants and burden or punish Black employees than any other group.”

The bill applies to public schools, public and private employers, and excludes religious associations and nonprofit organizations.

Compliance for Public Agencies

In a July 3, 2019, press release, Governor Newsom clarified that employers may still implement and maintain dress and grooming policies, so long as they are “valid and non-discriminatory” and do not have a “disparate impact.” Accordingly, employers should be cautious when drafting and reviewing their policies.

Employers should review, and continue to periodically review, their dress and grooming policies for any provisions that might not be in compliance with the CROWN Act. Policies should not include any provisions prohibiting hairstyles that are historically associated with race, such as Afros, cornrows, braids, locks, or twists.

Employers may continue to enforce policies that require employees to secure their hair for health, safety, or hygienic reasons, but should ensure those policies are consistently applied to all employees. Policies should state the reasons for implementing such standards.

Lastly, employers should be mindful that the bill’s new language prohibits discrimination based on “traits historically associated with race.” Therefore, although the bill primarily focuses on hair texture and hairstyles, it may be a source of litigation for discrimination based on other traits associated with race.

For further information, please contact Colin Tanner or Pam Lee from Aleshire & Wynder, LLP’s Labor & Employment Practice Group at (949) 223-1170.

Disclaimer:  Aleshire & Wynder, LLP legal alerts are not intended as legal advice.  Additional facts or future developments may affect subjects contained herein.  Please seek legal advice before acting or relying upon any information in this communication.