EMPLOYERS: IS YOUR GROOMING POLICY DISCRIMINATORY?
Jaimee K. Wellerstein, Esq. & Annette M. Barber, Esq., Bradley & Gmelich LLP
On July 3, 2019, California became the first state to ban discrimination against natural hair, including afros, braids, twists, and dreadlocks. Introduced by Sen. Holly J. Mitchell, Senate Bill 188 (SB 188) aims to “Create a Respectful and Open Workplace for Natural Hair” (the CROWN Act) by clarifying that traits historically associated with race, such as hair texture and hairstyle, be protected from discrimination in the workplace and schools. Governor Gavin Newsom signed Senate Bill 188 (SB 188), thereby amending the California Fair Employment and Housing Act (FEHA) and the California Education Code. The new law becomes effective January 1, 2020.
SB 188 will ensure protection against discrimination in the workplace based on hairstyles by prohibiting employers from enforcing grooming policies that disproportionately impact persons of color. SB 188 is more far-reaching than prior protections. While anti-discrimination laws presently protect an employee’s choice to wear an afro, afros are not the only presentation of natural Black hair.
LESSON LEARNED:
California employers should review their grooming policies to determine if they are racially neutral, or if changes need to be made to ensure that racially associated hairstyles such as afros, braids, locks (dreadlocks) and twists, are not prohibited. Also, employers should ensure that managers and supervisors, especially those involved in the hiring process, are trained to comply with this new requirement.
Taking adverse employment action against an applicant or an employee based on a racially associated hairstyle could subject employers to liability for race discrimination. Client preference will not be a feasible defense to prohibiting these soon-to-be protected natural hairstyles. Employers are advised to start planning now to ensure their policies and practices are in place by the January 1, 2020 implementation date.
Contact us to assist in reviewing your anti-discrimination, grooming, or any other employment policies or procedures. (Once you’re sued for race discrimination, changing your policies won’t help.)
Jaimee K. Wellerstein is a Partner at Bradley & Gmelich LLP, and the Head of the firm’s Employment Department. Jaimee concentrates her practice in representing employers in all aspects of employment law, including defense of wage and hour class actions, PAGA claims, discrimination, retaliation, harassment, wrongful discharge, misclassification, and other employment related lawsuits. She also provides employment counseling and training in all of these areas.
Jaimee routinely represents employers in federal and state courts and in arbitration proceedings throughout the state, as well as at administrative proceedings before the Equal Employment Opportunity Commission, the California Department of Labor Standards Enforcement, the United States Department of Labor, and other federal and state agencies. Jaimee assists as a Legal Advisor to CALSAGA, and is a member of ASIS International. She is rated AV-Preeminent by Martindale Hubbell, the highest peer rating available. jwellerstein@bglawyers.com / 818-243-5200.
Annette M. Barber is Special Counsel on Bradley & Gmelich LLP’s Employment Team. She represents clients providing employment advice and counsel in all aspects of hiring, performance management, training, compensation, and termination. Annette spent the past 17 years working with a global security company of 100,000 U.S. employees as an employment law attorney and then as Corporate Vice President directing HR Compliance nationwide for all 50 states, Puerto Rico and Guam.
Annette drafts and revises policies, handbooks, and extensive training materials for the firm’s clients. She provides workplace trainings, as well as workplace investigations. She is a member of the Association of Workplace Investigators, numerous bar associations and employment law sections. abarber@bglawyers.com / 818-243-5200.
