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California Outlaws (Some) Hair Discrimination

People Watching Presentation

A couple of months ago, I discussed whether a company could terminate an employee who had dyed her hair pink. My conclusion was that employers could legally — at least for now — prohibit employees from having pink hair although I noted that employers were increasingly reconsidering prohibitions on hair color, tattoos and certain piercings which might have the effect of eliminating talented younger candidates from the applicant pool.

Last week, California actually made it illegal for employers to discriminate against employees’ “natural” hair styles such as braids, locks and twists that are historically associated with race. (California employers would still be free to discriminate against employees because they dyed their hair pink or some other color.)

Just a few years ago, the United States Supreme Court refused to review an 11th Circuit Decision that held that an applicant who was rejected because of her dreadlocks could not assert a claim of race discrimination under Title VII because the dreadlocks were not “immutable characteristics.”

The issue of hair discrimination — even outside the employment context — has also received a lot of media coverage in the last year, most notably in the case of the white high school wrestling referee who forced a black athlete to choose between forfeiting a match or cutting his dreadlocks. The video of the distressed teenager having his locks cut went viral and prompted charges of racism. The controversy is not likely to go away soon, and I would not be surprised if other states or municipalities follow California’s lead and enact laws prohibiting some forms of hair discrimination. See, for example, my colleague’s post on the New York City Commission on Human Rights’ guidance related to race discrimination on the basis of hair here.

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This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.