California Moves Toward Ending Race-Based Hair Discrimination

Speaker 1: 00:00 When you Google images of unprofessional hairstyles, you will see mostly pictures of black women with natural hairstyles. That kinky, coily, curly hair texture, unprocessed by chemicals, extreme heat or cut low has for years been viewed as unprofessional and workplaces in schools, California Senate bill one 88 which is expected to become law will change that professor Starla Lewis who lectures on diversity and African American studies had this to say, Speaker 2: 00:28 well you know, I'm really excited about it because I think as an African American with natural curly hair, uh, it's always been a challenge to get my hair accepted and acceptable. And um, and I think about the fact that this is how I was created and this is the hair that grows out of my head. Speaker 1: 00:48 Dan Eaton who has an employment law attorney and partner for Seltzer Caplan Mcmann Vitech joins us to talk about Senate bill one 88 also known as the Crown Act. Dan, welcome. Speaker 3: 00:59 Sure. Good to be with you Jane. So what inspired Senate bill one 88 and what does the legislation proposed to do? A bill? A one 88 is called the crowd belt, which is creating a respectful and open workplace for natural hair. The idea is to prevent discrimination based on hairstyles that are historically associated with race. And it overwhelmingly passed the state senate. What's next? Unanimously passed the state Senate as a matter of fact. And so it goes to the uh, state assembly for a further consideration. And it seems California is following the lead of New York as they recently pass similar legislation. What would it take for antidiscrimination laws extended to hair to become federal law? It would take a great deal of coming together. The fact is that even the federal law title seven, the Employment Discrimination Law has been extended to apply, uh, to Afros to prevent discrimination based on Afro. Speaker 3: 01:58 The thinking of the California legislature is it, that was just too narrow. And therefore, like in New York and other jurisdictions recently, they said it's time to expand that to other hairstyles that also are historically associated with race. And you know, as it stands now, could our current antidiscrimination laws already be extended to natural hairstyles? It could arguably, I mean, as I said, it probably already a extends to Afros for example, but the thinking is fed a grooming policies are, should be broader than that if that, uh, there are certain hairstyles beyond our fro, uh, that are historically associated with the African American race in particular, and that should be protected. Understand, uh, that part of this arises out of a case that came out earlier, uh, in around 2007 involving in African American employee at a San Diego Abercrombie and Fitch store. And the question was whether he could, uh, be, uh, fired or refuse to be hired because he was wearing corn rows, which didn't comport with. Speaker 3: 03:02 There are a fresh look policy. And so there was a claim that was brought before the State Department of Fair Employment and housing that was dismissed. Why? Because hairstyles are not immutable essentially. And there was no explicit discussion of that. But certainly the federal courts, when they were talking about hairstyles have focused on the immutability of the characteristics and hairstyles can be chained. The California legislature says, no, that doesn't really look at it the right way of what you really need to look at is whether a particular trait is intimately tied with racial identity. Now that includes hairstyle, but importantly of the measure under consideration does not limited to hairstyles. So would he hood includes such things as a racial, uh, patterns or manners of clothing that are historically associated with race. Speaker 1: 03:52 Does this legislation opened the door for more vast changes in what's perceived to be professional attire? Okay. Speaker 3: 03:58 No, I don't think it does. I mean they, they go out of their way to say the legislature goes out of its way to say that this is not enormous change in the law. But what's interesting about the legislation, when you look at it closely and you look at the report of the committee on the judiciary, they consider this, it says, well historically associated with race, but it doesn't have to be the race of the particular employee. In other words, this would protect the rights of white employees tov where our corn rows as well as African Americans. Speaker 1: 04:27 And is there a history of discrimination based on hair in this country? Speaker 3: 04:33 Well, that's hard to say because as I said, there was that one case, uh, out of, uh, San Diego involving Abercrombie and Fitch, but there are cases that have said, uh, where an employer has taken action against an employee for wearing a styles that are considered unconventional and that are more typically not better, not euro centric, uh, that, uh, that has been okay because you can always change her hairstyle. What the legislature pointed out is that, well, straightening your hair and doing certain things chemically and so forth, it can have serious health consequences, particularly for African American women. And that should not be allowed. Uh, more importantly, the legislature is saying it's important to allow people to express their racial identity through their hairstyle, even if a hairstyle could be changed. Speaker 1: 05:24 And, you know, I mean, there has been a long history of penalizing black people for the way they wear their hair. I mean, we can remember in the 60s, you walked through the door of an interview with an Afro and uh, suddenly the job is filled. Uh, in many cases. I mean, talk to me a bit about that. Speaker 3: 05:38 Well, of course this, uh, what you're talking about a jade is the root of a race discrimination. Generally race discrimination, uh, falls into a variety of different kinds of issues, including for example, your name. There are some names that are racially identifiable of this particular measure is designed to stamp out just one of many unfortunate a residual effects of racial discrimination in employment and other areas of life in this country. Do you think that this legislation makes way for more broader legislation in regards to antidiscrimination laws and employment? Yes. Each change in employment discrimination law inevitably gives way to further changes in employment discrimination law. Who knows what the next frontier will be, but it is very likely given the unanimous reception this measure God in the state Senate, that this measure anyway is going to become law later this year. Legal analyst, Dan Eaton, thank you so much for joining us. Sure. Thank you. Jay.