By Clay Creps
It appears Oregon will be joining the wave of states enacting laws against hair-based discrimination. House Bill 4107 would amend antidiscrimination statutes in Oregon to include discrimination based on hairstyle. Following the lead of various other states, legislation has been introduced in Oregon that would define "race" for purposes of antidiscrimination statutes to include "physical characteristics that are historically associated with race," specifically including characteristics related to hair. The Bill has already passed the Oregon House and is now before the Oregon Senate.
Oregon law has long made discrimination on the basis of race an unlawful employment practice. (ORS 659A.030(1)(a).) But Oregon law, like its federal Title VII counterpart, has not previously defined race, presuming that further clarification was not needed. The Bill now adds a definition of race for the first time: "'Race' includes physical characteristics that are historically associated with race, including but not limited to natural hair, hair texture, hair type and protective hairstyles." The Bill further defines "protective hairstyles" to mean "a hairstyle, hair color or manner of wearing hair that includes, but is not limited to, braids, regardless of whether the braids are created with extensions or styled with adornments, locs and twists."
If the Bill passes the Senate and is signed into law by Governor Brown, Oregon would become the fourth state to enact such legislation. The first state was California in July 2019, followed closely by New York later that month. New Jersey enacted similar legislation in December 2019. Several cities, including New York City and Cincinnati, have also passed such laws.
These laws have grown out of a movement seeking to address negative and adverse employment decisions against individuals who have worn their hair in styles historically associated with race, such as banning dreadlocked hair in the workplace. Such bans are often found in employer dress code policies. Further, cases asserting discrimination based on hairstyle often describe numerous comments about hair. While numerous cases have been brought alleging such bans and comments are racially discriminatory, more often than not such cases have failed, often based on the distinction between an immutable characteristic (such as hair color) and a mutable characteristic (how the hair is worn). Courts have generally found that an employment practice based on an immutable characteristic associated with race is discriminatory, while an employment practice based on a mutable characteristic is not. These new changes to the discrimination laws do away with that distinction on the basis that the hairstyle itself is associated with race. This is consistent with EEOC statements that black persons choose to wear dreadlocks because the hairstyle is historically, physiologically, and culturally associated with their race.
Assuming the Bill becomes law, what does this mean for Oregon employers? Employers should immediately delete from dress codes any ban on hairstyles historically associated with race. However, even facially-neutral references to hairstyle (such as regarding length) may also be forbidden under the Bill, as the Bill has a provision addressing such references. The Bill provides that discrimination does not include enforcement of an otherwise valid dress code or policy, so long as the code or policy "[d]oes not have a disproportionate adverse impact on members of a protected class." An argument can be made that a dress code requiring short hair has a disproportionate adverse impact on black persons since dreadlocks tend to be longer. Hopefully, the Bureau of Labor and Industries will provide guidance in its administrative rules on such potential sources of confusion.
Secondly, employers should train hiring managers and supervisors not to make employment-related decisions based on hairstyles and to avoid negative or adverse comments regarding hairstyles.
We will continue to monitor legislative activity closely and keep you apprised if the Bill becomes law.
This update is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group, or the attorney with whom you normally consult.