The 12 Days of California Labor and Employment Series – Day 3 "Further Expansions in Discrimination Protections"

In the spirit of the season, we are using our annual "12 Days of California Labor and Employment" blog series to address new California laws and their impact on employers. On the third day of the holidays, my labor and employment attorney gave to me three French hens, AB 1815, and SB 1137. 

What is AB 1815?

Background

The CROWN (Creating a Respectful and Open World For Natural Hair) Act went into effect on  January 1, 2020. Upon its enactment, California became the first state to ban hair discrimination at schools and in the workplace. 

This year, California enacted AB 1815, which amends the definition of "race" in the anti-discrimination provisions of the California Government Code and the Education Code and adds the definitions to the Unruh Civil Rights Act.

Details of AB 1815

Prior to AB 1815, with the CROWN Act, race was noted to include traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.

With the enactment of AB 1815, "race" is now defined as inclusive of traits associated with race, including, but not limited to, hair texture and protective hairstyles. "Protective hairstyles" includes, but is not limited to, such hairstyles as braids, locs, and twists. The word "historically" has been removed from the definition. These definitions were previously not part of the Unruh Civil Rights Act and have now been added.

Compliance Steps for Employers

• California employers that are already in compliance with the CROWN Act will likely not need to take any further action. 
• However, all employers should review their dress and appearance policy to ensure compliance with AB 1815,
• Employers should also think twice before speaking to an employee regarding a hairstyle.

What is SB 1137?

Background

On the same day that AB 1815 was signed into law, SB 1137 was as well. Similar to AB 1815, SB 1137 clarifies the anti-discrimination provisions of the Unruh Civil Rights Act, the Education Code, and the Fair Employment and Housing Act (FEHA). 

Currently, all of these code sections prohibit discrimination based on a protected characteristic. With the enactment of SB 1137, the law was expanded to also prohibit discrimination based on the intersectionality of two or more protected traits. This is the first law of this kind, and California is once again taking the lead.

Details of SB 1137

The language of the bill noted that:

[I]t [wa]s the intent of the Legislature to hereby recognize the concept of intersectionality in California’s civil rights laws. Intersectionality is an analytical framework that sets forth that different forms of inequality operate together, exacerbate each other, and can result in amplified forms of prejudice and harm.

The framework and term "intersectionality," coined and popularized by legal scholar Professor Kimberlé Williams Crenshaw, captures the unique, interlocking forms of discrimination and harassment experienced by individuals in the workplace and throughout society, particularly Black women, as compared to Black men and White women.

While the law is new, it brings to the forefront the 1994 Ninth Circuit case of Lam v. University of Hawaii which involved a Vietnamese woman who was rejected twice from the law school’s Pacific Asian Legal Studies Program. Initially, no discrimination was found as the other candidates were an Asian male and a white woman. 

However, the Ninth Circuit reversed, holding that "when a plaintiff is claiming race and sex bias, it is necessary to determine whether the employer discriminates on the basis of that combination of factors, not just whether it discriminates against people of the same race or of the same sex." Lam v. University of Hawaii, 40 F.3d 1551, 1562 (9^th Cir. 1994).

Compliance Steps for Employers

California employers should take the following steps to comply with SB 1137 before it takes effect on January 1, 2025.

• Once it goes into effect, employers will need to evaluate their discrimination actions in a slightly different manner.
  • It could be necessary to evaluate whether the discrimination or harassment occurred on the basis of one characteristic or a combination of two or more characteristics. This could lead to additional causes of action and increased litigation costs.
• Employers need to also review their existing anti-discrimination policy and update it acknowledging that discrimination may be based on a combination of characteristics. Additional training for managers, supervisors, and Human Resource departments will likely prove beneficial as well.