New Legislation Expands Washington’s Anti-Discrimination Law

The Dictionary.com definition of “discriminate” is to make a distinction in favor or against a person on the basis of the group, class, or category to which the person belongs rather than according to actual merit.

The Washington Law Against Discrimination (WLAD), Chapter 49.60 RCW, currently prohibits discrimination in the context of credit, public accommodation, real estate, and — of particular concern for local governments — employment on the basis of race, creed or religion, color, national origin, families with children, sex, marital status, sexual orientation, age, military status, or the presence of disability. 

This past regular session, the Washington State Legislature expanded the anti-discrimination law to prohibit racial discrimination on the basis of hair and discrimination on the basis of citizenship status.

Racial Discrimination on the Basis of Hair

The term “race” is not defined in the WLAD, which means state courts will often look to similar federal law for guidance. Under federal employment discrimination law, the courts have found that only aspects of racial identity that cannot be changed (i.e., are “immutable”) are protected from racial discrimination in the employment context. Specifically, federal courts have found that hairstyles, which can be changed, are not an aspect of racial identity that is protected from discrimination. These federal courts have chosen to distinguish between afros, which are arguably the result of innate hair texture and thus cannot be changed without significant and often damaging processes, and protective hairstyles like braids, locs, and twists, which are non-damaging ways of wearing textured hair.

The federal courts have reached this distinction despite such protective hairstyles being “physiologically and culturally associated with people of African descent.” EEOC v. Catastrophe Management Solutions, 854 F.3d 1018, 1031 (11^th Cir. 2016). The EEOC v. CMS court found that federal law did not prohibit an employer from retracting a job offer when the applicant refused to cut her locs. Id at 1035. Contrast this with Jenkins v. Blue Cross Mutual Hospital Insurance, 538 F.2d 164 (7^th Cir. 1976), which found an allegation of promotion-denial based on employee choosing to wear an Afro was sufficient to support a charge of racial discrimination.

In other words, under federal law, an employer can discriminate (i.e., treat an employee or potential employee differently and often pursuant to so-called “grooming” policies) against someone due to their decision to wear their hair in a protective hairstyle despite the fact that the hairstyle is intended to protect an immutable trait of their racial identity, specifically their textured hair.

With HB 2602, Washington joins a growing trend of states amending their anti-discrimination laws to reject the distinction between texture and hairstyle made by federal courts and simply prohibiting racial discrimination based on hair. The bill, which became law on June 11, 2020, adds the following definition of “race” to the WLAD, RCW 49.60.040(27):

“Race” is inclusive of traits historically associated or perceived to be associated with race including, but not limited to, hair texture and protective hairstyles. For purposes of this subsection, “protective hairstyles” includes, but is not limited to, such hairstyles as afros, braids, locks, and twists.

Note that the definition is not limited only to protective hairstyles “historically” associated with race — it also includes those hairstyles “perceived to be associated” with race. This acknowledges that many protective hairstyles have been worn by people of many races, but some are perceived to be associated with particular races. This likely also means that as hairstyles evolve over time, if a style is perceived to be associated with a particular race, then discrimination on the basis of that protective hairstyle will become illegal.

Note also that the definition is not strictly limited to hair texture and hairstyles, but also includes “traits” associated with race. This results in an expansive definition of the term “race” and means far more than hair texture and hairstyles are protected from racial discrimination.

Local government employers will need to review their personnel policies and practices, including any headwear and “grooming” requirements, to ensure they are not discriminating against traits, and particularly protective hairstyles, associated with race. Keep in mind that while a policy may appear neutral on its surface, how that policy is applied can have a discriminatory effect.

Note that hairstyles associated with religious identity and practice are already protected under federal and state law.

Discrimination on the Basis of Citizenship Status

As noted in the ESB 5165 Bill Report, testimony before the Senate Committee on Law & Justice indicated that non-citizen immigrants are often discriminated against in housing and work situations, even if they hold valid work or other types of visas. While it is already illegal to discriminate against someone on the basis of their national origin or ancestry, it is not currently illegal to discriminate based on their immigrant or citizenship status, and people of this class are often targeted and taken advantage of by landlords and employers.

ESB 5165 adds “citizenship or immigrant status” to the list of protected classes in the WLAD. Any provision within Chapter 49.60 RCW that lists all the classes of protected persons is amended to expressly include “citizenship or immigrant status,” such that what has been illegal and an unfair practice for all the other protected classes is now also illegal and unfair for this class.

However, a new section is added to the WLAD and RCW 49.60.020 is amended to clarify the following:

to the extent that distinction or different treatment on the basis of citizenship or immigration status is authorized by federal or state law, regulation, or government contract, it is not an unfair practice.

This means that when a law requires a particular citizenship or immigrant status, such as to be eligible to work, it is not a violation of the WLAD to treat a person differently on the basis of their citizenship or immigrant status. This exception does not apply to any of the other protected classes.

Resources

Violations of the WLAD, especially in the context of employment, are prosecuted by the Washington Human Rights Commission (HRC). We anticipate the HRC will soon be updating its guidance and resources available at www.hum.wa.gov. In the meantime, consider reviewing the New York Commission on Human Rights Hair Guidance, which was issued after that state passed a similar law prohibiting discrimination based on hair.

The author would like to thank her friend and writer A. Mireille Fall-Fry for her generous gift of time and thoughtful discussion on issues of privilege and discrimination, particularly in the context of protective hairstyles.