On July 3, 2019, Governor Gavin Newsom signed into law a bill that extends California’s workplace and school discrimination protections to cover race-related traits, including hair. SB-188 expands the definition of “race” under the Fair Employment and Housing Act and the nondiscrimination provisions of the Education Code. Effective January 1, 2020, “race” will include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” The law further specifies that “protective hairstyles” “includes, but is not limited to, such hairstyles as braids, locks, and twists.” This change in the law includes protection from such discrimination against employees and students.
The bill was introduced by State Senator Holly J. Mitchell, and sponsored by a coalition comprised of the National Urban League, Western Center on Law & Poverty, Color of Change, and personal care brand Dove. Effective January 1, 2020, it amends Government Code section 12926 and adds section 212.1 to the Education Code.
The bill appears primarily intended to prevent unequal treatment related to natural Black hairstyles. The bill includes a legislative declaration that “Despite the great strides American society and laws have made to reverse the racist ideology that Black traits are inferior, hair remains a rampant source of racial discrimination with serious economic and health consequences, especially for Black individuals.” The declaration also states that “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 policies are more likely to deter Black applicants and burden or punish Black employees than any other group.”
Although the bill specifically references Black hairstyles, the statutory changes it establishes may be more broad. For example, under the new statutory language, it appears employers and schools are prohibited from discriminating based on any trait “historically associated with race.” The parameters of this standard, i.e. whether a particular trait qualifies as “historically associated with race” will be subject to debate. In addition, although the findings and declarations speak to Black hairstyles, the new statutory language does not limit protection to African American individuals with traditionally Black hairstyles. These types of issues will surely be the subject of litigation in court.
Employers should ensure their policies (including, but not limited to, anti-harassment policies, dress codes and grooming standards) are updated in accordance with this change of law going into effect January 1, 2020. In addition, supervisors should be trained on the expansion of the definition of “race” in the Fair Employment and Housing Act and/or Education Code.