Speaker 1: (00:00)
A local employer is being sued for allegedly violating the California crown act, which makes hair discrimination. Illegal. Crown is an acronym for create a respectful and open workplace for natural hair. As an acted by California. The log stands both to hairstyles associated with race, as well as other racially associated trait, such as dress and speech. The lawsuit alleges an employee with Encore group LLC was denied a position because of his locks. Joining me to talk about the case and the crown act is Dan Eaton, legal analyst and partner with seltzer, Caplan, McMahon, and Vtech. Dan, welcome.
Speaker 2: (00:38)
Good to be with you. So
Speaker 1: (00:40)
This is a first of its kind case which alleges an employer violated the crown act. What does the crown act say specifically about the workplace and discrimination?
Speaker 2: (00:50)
Well, what the crown act did was it was a measure enacted in 2019 by the California legislature that prohibits discrimination based on code traits historically associated with race, including, but not limited to hair texture, close quote and hairstyles such as Afros, braids, twists and locks.
Speaker 1: (01:09)
Uh, in this case, the lawsuit says Jeffrey Thornton, uh, who wears his hair in locks, was furloughed with Encore. During the early days of the pandemic, he relocated to San Diego was invited to interview here for a position with the same company and was told he was qualified for the position, but needed to change his hair among other things. Does this sound like a strong case to you? Did this company violate the crown act?
Speaker 2: (01:34)
Well, we don't know Jay, because we only have one side of the story at this point, understands that not withstanding the crowd act and employers still have the right to set a general, uh, grooming, grooming, uh, qualifications and, and certain policies. But what they cannot do is they cannot discriminate, uh, based on, uh, hairstyles and other characteristics associated with race. So you're looking at one side of it and it certainly, he states a plausible claim under the crowd act, but whether it will ultimately prevail will depend on what other defenses the employer may have.
Speaker 1: (02:10)
And the California department of fair employment and housing issued a right to Sue letter to Thornton, uh, after he filed a claim against Encore, how significant is that?
Speaker 2: (02:21)
Not at all because he got that right. Just two letter, right after he filed his administrative complaint, which is a necessary prerequisite to falling a lawsuit. And if you have a lawyer, if an employee has a lawyer, they frequently say, you know what, for employment, the department of fair employment, housing dispense with your own investigation, I want to go right to court, which is what he did. And I want to raise a point that you just did, which is about the first of its kind. I actually looked this up. And the fact is that, yeah, I haven't found any cases, even looking at a national database that have raised their crowds. What I did find, interestingly, wasn't August of 2021 case out of Alabama of all places that said that while they don't have a crowd out there and there's no federal crown act under title seven, uh, you cannot use a hairstyles as a proxy for racial discrimination, which is what the court said. At least the plaintiff had plausibly alleged, if that case just a few months ago. Hmm.
Speaker 1: (03:14)
Well, that's interesting. And I want to talk more about the crown act a bit, which aims to protect people's right to their cultural identity and racial heritage. I mean, can you talk about the ways those things are tied to one's hair?
Speaker 2: (03:27)
Well, they are tied to wa once hair, obviously there are hairstyles that are traditionally associated, uh, particularly with African-Americans and it's part of the, uh, identity that African-Americans are bring to work. And it expresses who they are. It was the sense that you want to protect that, that led to the crowd act because up to this point, title seven, uh, the EOC, which enforced the title seven, the federal law has been clear that while immutable characteristics such as hair texture are protected changeable or mutable characteristics such as hairstyle or not are not. And that's what the crowd act was designed to protect is that if the hairstyle is associated with racial identity, you've got to protect that because it's part of the expression of an African American as an African-American. And can you
Speaker 1: (04:14)
Give me some examples of protected hairstyles?
Speaker 2: (04:17)
Well, Afros are the obvious one where you have a long bushy, a hairstyle, which I actually had a week ago, Saturday when I had my hair cut, uh, dreadlocks, corn rows locks, which are somewhat different. And there are the hairstyle that this particular plaintiff has. Interestingly, under the crowd act, you don't have to be a member of the race whose hairstyle is associated with a particular hairstyle to assert a claim under the crown act. I think the assumption is though that it's going to be brought by those whose our race matches of the historical association with a particular hairstyle.
Speaker 1: (04:54)
Um, and to your knowledge, has Encore said anything about the allegations in the lawsuit?
Speaker 2: (04:59)
No, I for union tribute ran a front page story today on it. And, uh, Encore apparently did not actually, uh, respond at this point. They'll have, uh, 30 days, this was just filed, uh, yesterday, uh, to, uh, make its first response. They'll probably file the general answer. That's my assumption. And then, uh, litigation will ensue.
Speaker 1: (05:21)
And is this case something you think California employers will be watching closely?
Speaker 2: (05:25)
Oh, sure. They will. Because as you said, it's, it seems to be the first of its kind in California or anywhere involving the crowd act. There are a number of jurisdictions about a dozen recording Union-Tribune stories that have been acted it as well as New York city administratively, uh, has, uh, has said that hairstyles are protected. So this is going to be one to watch. I think so most employers have moved beyond the idea of actually setting limits on, uh, racially associated hairstyles,
Speaker 1: (05:54)
Speaking, Dan Eaton, legal analyst and partner with seltzer, Caplan McMahon. And Vitech Dan, thank you so much for joining us.
Speaker 2: (06:02)
Good to be with you, Jay.
Speaker 3: (06:04)
Um,
