California’s Hair-Raising Employment Laws: 2020 Legislative Update

Continuing with our legislative update, today we will offer insights into new bills expanding the Department of Fair Employment and Housing’s (DFEH) authority and the Fair Employment and Housing Act’s (FEHA) protected categories.

Senate Bill 188: Amends the Definition of Race in the FEHA 

Existing federal and state laws prohibit discrimination and harassment based on race (among other protected characteristics). Per the author of SB 188, federal courts previously held that discrimination against hairstyles, such as braids and twists, is not a form of prohibited racial discrimination. However, per the author, many African American women use braids and twists because they are “protective” of their “natural” hair texture and necessary for healthy hair maintenance.

In conformity with the above, SB 188 declares 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.”

Accordingly, the Bill’s purpose is to “eliminate the confusion and incoherence found in federal case law.” It attempts to do so by amending the FEHA to clarify that “race” also includes hair texture and protective hairstyles, such as braids, locks, and twists.

Employers are encouraged to review their grooming policies to confirm compliance with SB 188.

Assembly Bill 1820: The DFEH May Bring Causes of Action to Enforce Federal Civil Rights 

The DFEH is an administrative agency charged with enforcing civil rights laws in California under the FEHA. Accordingly, the DFEH is authorized to file legal action seeking remedies for civil rights violations in court.

AB 1820 expands the DFEH’s authority by permitting the agency to bring legal action for violations of federal civil rights law. This bill supersedes a 2014 district court’s holding that the DFEH could not enforce federal civil rights, due to lack of express authority in the FEHA.

The new law expands the scope of claims the DFEH can bring against California employers, and thus makes it even more important for employers to make sure their policies are compliant with both state and applicable federal law.

Nicholas Kanter and Tal Burnovski Yeyni are employment defense attorneys.