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Discrimination Based on Hair Styles is Now Illegal Under California Law

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Image result for patrick r kitchinThe Public Shearing of Andrew Johnson’s Dreadlocks

In December 2018, a video showed a white high school trainer in New Jersey cutting dreadlocks from 16-year old African American wrestler, Andrew Johnson. The lead referee had instructed him, ‘Cut your hair in the next 90 seconds, or you will be banned from today’s competition.’

The image is shocking: a white woman roughly cutting a black teenager’s hair in front of an auditorium filled with parents and children.  Andrew stared straight ahead.  The school initially argued haircut was needed for the safety of the wrestlers in accordance with standard rules about wrestlers’ hair length.

The justification for the act quickly was overpowered by its dreadful significance.  In response to the public outcry, the state attorney general’s office suspended the referee for two years, and ordered educators in all high schools in New Jersey to undergo implicit bias training.

A Conversation Begins

Public reactions to the video ranged from outrage to denial.  According to an April 17, 2019 Washington Post article about Mr. Johnson, residents of his hometown, in New Jersey had mixed reactions too.

Many who attended the match that night, saw the cutting of Andrew’s dreadlocks as an act of racial intolerance.  Others blamed Andrew himself for failing to follow hair length rules applicable to all wrestlers.  Some saw the event as proof that racism in America is endemic.  Others argued it was racist to claim that the cutting of Andrew Johnson’s deadlocks was an act of racial discrimination.

California Leads the Way

The California Fair Employment and Housing Act (“FEHA”) does not lay out an exhaustive list of acts and attitudes that violate the rights of job seekers and employees.  That is part of its strength.  If gives us the flexibility to decide whether an act or process is discriminatory based on the evidence in specific cases.

Instead of relying on a limited number of examples, FEHA sets out protected categories of people and conditions. One’s race falls into one of the protected categories.  Being disabled places a person into another.  A person cannot be harassed or discriminated against based on their status as a member or one or more of these categories.

Beginning January 1, 2020, policies and practices that target hairstyles associated with race constitute acts of discrimination in both education and employment.  Known as the CROWN Act (Create a Respectful and Open Workplace for Natural Hair), Senate Bill 188 modifies the California Fair Employment and Housing Act and the Education Code.  The newly defined additional category states that discrimination based on race now includes “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”

Senate Bill 188 Expands Protections Against Discrimination in Employment and Education

California has some of the most broadly protective employment discrimination laws in the nation.  The CROWN Act adds “Protective hairstyles” as an additionally protected category under the Fair Employment and Housing Act.  SB-188 also amends the California Education Code to prohibit discrimination based on “Protective hairstyles,” which “includes, but is not limited to, such hairstyles as braids, locks, and twists.”

In a world where physical appearance continues to be employed as a weapon for denying equal protection under the law to all citizens and residents, the new law makes a powerful statement about race and ethnicity-based discrimination.  “Hair remains a rampant source of racial discrimination with serious economic and health consequences, especially for Black individuals,” the Legislature declares.

The Legislature’s Preamble to SB 188

The Legislative preamble to SB-188 makes a powerful statement about hair in the context of the history of race discrimination and toxic ethnocentrism in America.

To combat bigoted ideas that have permeated “societal understanding of professional,” the preamble states, “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…, The Legislature recognizes that continuing to enforce a Eurocentric image of professionalism through purportedly race-neutral grooming policies that disparately impact Black individuals and exclude them from some workplaces is in direct opposition to equity and opportunity for all.”

Watershed Moments

The public shearing of Andrew Johnson’s dreadlocks in 2018 is another watershed moment in the history of race relations in America.  The public haircut of a black child surrounded by white adults generated discussions across our country about who we are and how we think about, and treat, others.

Bigotry is almost always accompanied by insults denigrating others based on their physical characteristics, whether it be skin or hair.  The legislative preamble to SB 188 should be required reading for every HR manager, supervisor and educator in California.

Reprinted with permission.

About the Author:Patrick R. Kitchin is the founder of Kitchin Legal APC, a San Francisco, California employment law firm. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. Patrick also represents employers requiring guidance in California employment law. Patrick is a graduate of The University of Michigan Law School and rated AV-Preeminent by Martindale-Hubbell, its highest ranking for legal knowledge, skill, experience and ethics.


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You’ve Come a Long Way, Baby? Maybe Not.

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Is it legal to fire a front desk clerk for not being “pretty enough”? Not in Iowa. Last Monday, the Eighth Circuit Court of Appeals reversed a trial judge’s decision and ordered Lewis v. Heartland Inns of America to trial.

Brenna Lewis was a front desk clerk at Heartland Inns in Ankeny, Iowa. She was promoted to the day shift, sight unseen, after enthusiastic recommendation from previous managers. Once on the job, Lewis’ loose-fitting clothing and unisex appearance caused Director of Operations Barbara Cullinan to express reservations about whether she was a “good fit.”

Lewis wore short hair, no makeup and sported an “Ellen DeGeneres look.” She was “tomboyish,” friendly, and well-liked by customers. Cullinan preferred a pretty “Midwestern girl look” on the day shift. She fired the manager who refused to reassign Lewis and demanded that Lewis undergo a videotaped “second” interview to keep her job. A distraught Lewis objected to the second interview, questioning whether it was lawful to require one just because of her appearance. Three days later she was fired.

When Lewis sued Heartland for sex discrimination, the company countered that Lewis was terminated for “thwarting” the interview procedure and exhibiting “hostility” to Heartland’s policies. The trial judge dismissed the case. Lewis appealed. In January, a three judge panel ruled in Lewis’ favor. On March 8, the full court denied Heartland’s request for rehearing, and ordered the case back to jury trial.

In some ways Lewis’ victory is not surprising. Over twenty years ago, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the United States Supreme Court ruled in favor of Ann Hopkins, a hard-charging and aggressive manager denied partnership despite outperforming all other candidates in her year. Hopkins was told that future success at the firm would depend upon her learning to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”

The Court held that unless Price Waterhouse could prove that it would have made the same decision without reference to gender stereotypes, Hopkins was entitled to prevail on her sex discrimination claim because “we are ‘beyond the day’ when an employer could evaluate employees by … insisting that they matched the stereotype associated with their group.”

But are we? Consider this: Had Heartland Inns turned Cullinan’s personal preference for pretty women into a formal job requirement, the case might well have gone the other way.

In 2006, the Ninth Circuit received a great deal of notoriety for its decision in Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006). The famously liberal court ruled not once, but twice in favor of Harrah’s casino, after it terminated bartender Darlene Jespersen for refusal to comply with its “personal best” appearance code. The code, which included both gender-neutral and gender-specific requirements, mandated “big hair” and a daily makeup regime for women.

Jespersen, a highly regarded 20-year employee, felt degraded by makeup. The business of a bartender is to mix drinks, assess sobriety, and maintain order. Jespersen argued that wearing makeup interfered with the deft personal touch and sense of authority she relied upon to perform those functions. Unimpressed, the Court held that her “personal preference” did not trump Harrah’s “personal best” grooming policy.

Employers, particularly in the service industry, adopt gender-specific appearance standards for competitive advantage, and defend them on grounds of customer preference. Fortunately, the law already imposes limits on this “business case” for discrimination. “Customer preference,” once a serious barrier to hiring minorities and women, was struck down long ago. “Competitive advantage,” the rationale for requiring stewardesses to parade around in hot pants, was rejected with the tart observation that the business of airlines is to fly passengers safely, not to sell sex.

Even if the required “look” is not overtly sexy, enforcing an idealized standard of feminine attractiveness increases the salience of gender over competence. This can undermine the authority of women whose jobs involve controlling the activities of others: police officers, construction supervisors and – yes — bartenders and flight attendants. While there may be rare situations in which idealized gender-specific appearance is a “bona fide occupational qualification,” the essence of most jobs is providing a service, not fulfilling a fantasy.

Yes, we have come a long way, but sadly, we are not “beyond the day” when employers can enforce gender stereotypes. It should not matter whether a stereotype-driven termination is the result of an individual supervisor’s preference or a company-wide appearance policy, but it does. This is wrong. Courts should know better than to give the green light to gender stereotypes “dressed up” as formal job requirements. If this trend is not reversed, and soon, the resulting effect on equal employment opportunity will definitely not be pretty.

Image: Pick UPAbout the Author: Charlotte Fishman is a San Francisco attorney, and Executive Director of Pick Up the Pace, a nonprofit organization whose mission is to identify and eliminate barriers to women’s advancement in the workplace.


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