Employers Should Review Their Grooming Policies After Latest Lawsuit

Employers should remember the importance of staying current on California's continually evolving Fair Employment and Housing Act ("FEHA"), particularly after the recent lawsuit filed last week in San Diego Superior Court.

In the recent lawsuit filed in the San Diego Superior Court, a former employee of an event management company is asserting that he is being discriminated against based on race by his former employer when he was instructed to cut his hair, which he had currently kept in locks.

It is believed that this is one of the first (if not the first) FEHA lawsuits to be filed due to the CROWN Act amendments that had taken effect in January 2021. The California fair employment and housing act forbids discrimination against employees and applicants based on race and color, among other shielded factors.

What is The Crown Act and Its Impact?

Legislators worked together, drafted, and passed Senate Bill No. 188 in 2019 into 2020. SB 188, also known as The CROWN Act (Create a Respectful and Open Workplace for Natural Hair), which amends the FEHA in addition to a portion of the Education Code expanding the definition of race to include discrimination based on "traits historically associated with race, including, but not limited to, hair texture and protective hairstyles."

The bill acknowledges excellent strides have been made by much of American society and legislation that has attempted to "reverse the racist ideology that Black traits are inferior." (SB 188 sec 1-c). However, the bill continues to explain that “hair remains an uncontrolled origin of racial prejudice that comes with severe economic and health consequences, especially for Black individuals."

As a policy for workplace dressing and grooming, the CROWN Act was formed to target policies that may be disproportionately or discriminatorily harmful to employees of color.

Despite the employer's assertions that the incident was a miscommunication of sorts (and not a manifestation of unlawful bias), this lawsuit should serve as a reminder to California employers to examine their discrimination, dress code, and grooming guidelines to ensure they comply with the CROWN Act. In addition, employers should be sure to train any managers and supervisors with the law in mind.

The Crown Act is Not Solely in California

To date, more than a dozen other states and 29 municipalities across America have passed like-minded legislation, protecting people of color against discrimination based on natural hair, protective hairstyles, and hair texture. Additionally, July 3 is declared National Crown Day. This date commemorates the CROWN Act being passed into law. In the same vein as #MeToo and #BlackLivesMatter, the CROWN Act has risen into a viral social movement aside from its meaningful and impactful legislative roots.

Policy Considerations for Employers

• Review and revise employee appearance policies being sure to remove any references to prohibiting specific hairstyles.
• Policies kept in place should be applied to all employees regardless of ethnicity and race.
• Make all policies, including appearance policies, accessible to employees.
• Management should be trained on any policy changes and how to handle appearance policy infractions sensitively and respectfully.
• Ensure that employees responsible for hiring do not comment on an applicant's appearance or supply inappropriate comments during interview processes.
• It would be prudent to introduce unconscious bias training and escalate the punishments for infractions of the appearance policy.

Note: Further, both the House and the Senate have begun introducing federal versions of the CROWN Act.