Bolstering the state’s reputation for progressive employment legislation, California has become the first state to ban discrimination based on natural hair and protective hairstyles.  On July 3, 2019, California Governor Gavin Newsom signed into law SB 188, which amends the California Fair Employment and Housing Act (FEHA), specifying that “hair discrimination targeting hairstyles associated with race is racial discrimination.”  The Creating a Respectful and Open Workplace for Natural Hair (CROWN) Act, takes effect on January 1, 2020, and applies to California employers with five or more employees.

The new law amends the FEHA definition of “race” to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”  Protective hairstyles include, for example, “braids, locks, and twists.”  As a result, California employers will be barred from maintaining dress code or grooming policies that prohibit natural hair or protective hairstyles, as these policies are more likely to deter Black applicants, and to burden or punish Black employees, than any other group.  The bill explains that “[p]rofessionalism was, and still is, closely linked to European features and mannerisms, which entails that those who do not naturally fall into Eurocentric norms must alter their appearances, sometimes drastically and permanently, in order to be deemed professional.”  The legislation also updates the California Education Code to prohibit similar discrimination in public education.

Although California is the first state to prohibit natural hairstyle discrimination, it trails New York City, which issued guidance in February 2019 explaining that policies banning natural hairstyles or hairstyles most closely associated with black people generally violate the New York City Human Rights Law.  The New York City guidance also explicitly prohibits grooming policies that require employees to change their hairstyle to conform to the company’s appearance standards, including having to straighten or relax hair.

Similar legislation, sponsored by the CROWN Coalition (Creating a Respectful and Open World for Natural Hair), is pending in New Jersey and was recently passed in New York state and is now awaiting the governor’s signature.

In light of these developments, employers should proactively review their grooming and appearance policies, even those that appear facially neutral, to ensure that they comply with the new prohibitions, are inclusive of all cultures and legally protected categories, and backed by legitimate, objective business needs.  Employers should also take measures to ensure that such policies are applied in a nondiscriminatory manner, including providing training to managers and others involved in the hiring process regarding the new law.