A California bill, SB 188, would provide a broader definition of race in the state's anti-discrimination law. The bill defines "race" as "inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles." The bill is expected to become law, and employers may want to plan accordingly.
The Equal Employment Opportunity Commission (EEOC) has long held that the meaning of race is not limited to skin color. Color discrimination is itself a protected category, which can be defined as discrimination based on pigmentation, complexion or skin shade or tone. Race has a broader meaning and can include physical characteristics associated with race (such as a person's hair, facial features, and height and weight), as well as cultural characteristics related to race (including a person's name, cultural dress and grooming practices, or accent or manner of speech).
New York City Comparison
Recently, the New York City Commission on Human Rights released new guidance regarding the application of the New York City Human Rights Law to characteristics and cultural practices closely associated with race. The commission focused in particular on discrimination against hair texture and hairstyles associated with being black because of the frequency of such discrimination.
The commission explained that "[r]ace discrimination based on hair and hairstyles most closely associated with black people has caused significant physical and psychological harm to those who wish to maintain natural hair or specific hairstyles but are forced to choose between their livelihood or education and their cultural identity and/or hair health."
California's SB 188 further reflects this development in civil rights law. SB 188 makes a series of findings and declarations, including that discrimination against "'blackness,' and the associated physical traits" is pervasive in society and has "permeated societal understanding of professionalism." The bill states that this "Eurocentric image of professionalism … disparately impact[s] black individuals."
The bill expressly includes protections of traits historically associated with race, including protective hairstyles such as braids, locks and twists.
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