New Lawsuit Reminds Employers to Check Their Grooming Policies

Proskauer - California Employment Law
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Proskauer - California Employment Law

A suit filed last week in San Diego Superior Court serves as a reminder to employers about the importance of keeping up-to-date on California’s evolving Fair Employment and Housing Act (“FEHA”). In the new suit, an employee, Jeffrey Thornton, claims that he was discriminated against on the basis of his race when his former employer, an event management company, allegedly told him that he would need to cut his hair, which Thornton maintained in locks. This is believed to be one of the first, if not the first, lawsuits filed that asserts claims under FEHA pursuant to the CROWN Act amendment, which took effect in January of this year.

California’s FEHA has long prohibited discrimination against applicants and employees based on race and color, among other protected characteristics. However, in 2019, lawmakers passed SB 188, also known as the CROWN Act (which stands for “Create a Respectful and Open Workplace for Natural Hair”), which amended FEHA and a portion of the Education Code, to expand 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 amended FEHA specifically lists locks as among the types of “protective hairstyles” subject to protection.

The CROWN Act was designed to target workplace dress and grooming policies that may have a disproportionate and/or discriminatory impact on employees of color. This topic has been at the forefront of public discourse and was even the subject of a segment in the popular HBO show Last Week Tonight with John Oliver, earlier this year. Although Thornton’s employer maintains that this is a simple miscommunication (not unlawful bias), the lawsuit is a reminder to California employers to closely examine their discrimination, dress code, and grooming policies to ensure that they address the CROWN Act, and to train supervisors accordingly. Employers outside of California should take note as well; 13 other states have passed similar legislation, and that number is only likely to grow. Additionally, federal versions of the CROWN Act have been introduced in both the House and the Senate.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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