Delaware Legislators Propose Ban on Employment Discrimination Based on "Traits Historically Associated with Race"

At LinkedIn, our friend and former colleague Tim Holly asks, "Should Stereotypes (And Hairstyles) Be Enshrined in Law As 'Historically Associated With Race​?'" Tim analyzes proposed new legislation currently under consideration by the Delaware General Assembly, which mirrors legislation which has been proposed in other states. The proposed legislation, which no doubt stems from good intentions, nevertheless creates a myriad of potentially unforseen problems. Tim's analysis is reprinted here in full by permission of the author.

Delaware Senate Bill 192 was introduced this month. A link can be found here. It appears to be a very similar bill to one that became law recently in New Jersey, called the "CROWN Act" -- standing for "Create a Respectful and Open Workplace for Natural Hair Act."

This bill in Delaware proposes to amend Delaware's Discrimination in Employment Act (the "DDEA"). Like federal law, the DDEA has long prohibited race discrimination. But this bill includes a new definition of "race," to include "traits historically associated with race, including hair texture and a protective hairstyle." "Protective hairstyle" would be defined to include "braids, locks, and twists."

Perhaps after getting past the bill's name, many might agree this bill seems reasonable on its face - because most, certainly including me, feel strongly that race discrimination is repugnant. But some, including me, might then start to think about the language of this bill, and conclude that this bill presents considerable problems.

Of all of the issues raised in the proposed definitions, the least problematic to me is the idea of prohibiting discrimination based on "hair texture." Indeed, I suspect one could succeed on a race claim, without this amendment, based on evidence of a refusal to hire someone because of their hair texture. That seems like a relatively immutable characteristic -- though I suspect some hair expert will tell me that even hair texture can be changed. In any event, I think I can see validity in making clear that race discrimination can exist where hair texture is proven to be a motivating factor in making employment decisions. I have never heard of anyone doing that, and it seems . . . well . . . silly to do so. Thus, I question whether this is a real issue/ problem that needs to be solved by adding to the law. If made part of the law, it seems probable that someone will at least make an allegation of this. And even baseless allegations can be expensive to defend against. But I digress.

I leave for others more knowledgeable of the history of hairstyle the task of describing when in history various hairstyles formally and officially, for purposes of laws like this bill, became associated with which race(s). I am not suggesting that, at some point in history, there was not some collection of people who began to assume certain hairstyles highly correlated with some specific race(s). But I am saying that I have no idea how to advise a client regarding which hairstyles qualify for which race(s) -- and thus are off limits for consideration in making employment decisions for such race(s). And it frankly does not matter much, for purposes of my concerns, what any commentator might opine about this. Reasonable minds inevitably will disagree, leaving the matter difficult to deal with in the business world, and one for the courts to resolve, which is not ideal for employers.
Something about the idea of not hiring someone because they have braids, locks, or twists rubs me the wrong way. That seems to me to raise questions about race-based motives. And, personally, I cannot imagine not hiring a talented person because they have braids, locks, or twists. Nonetheless, I'm not sure I agree that businesses should be stripped of their judgment about which hairstyles its employees may not have -- especially when the rule is equally applied to everyone, no matter their race. It is difficult to imagine a successful adverse impact claim based on such hypothetical policy, but I suppose, in theory, the law is already built to deal with that through such claim. Thus, again, I'm not sure there is a real issue/ problem that needs to be solved by adding to the law. In any event, I sense that we are going down a wrong path by defining "race" to include hairstyles. Questions abound. Would an employer act lawfully in refusing to hire a person of race X because that person has locks (i.e., because locks are not historically associated with race X), but act unlawfully in refusing to hire a person of race Y because that person has locks (i.e., because locks are historically associated with race Y)? Who decides which hairstyles are "historically associated" with which race(s)?
My largest concern with this bill pertains to the Pandora's Box of defining race, outside the hair context, to include any and all "traits historically associated with race." How far back in history must a "trait" go to qualify? Are we counting only the "old" stereotypes; or the "new" stereotypes too? More generally, who decides which traits are, as a matter of law I suppose, the stereotypes that count as prohibited? I predict very awkward conversations ahead as well-meaning people begin to spar about which traits are those "historically associated with race." I imagine some people will become offended to learn that some trait is perceived by others as being historically associated with race - perhaps those sharing their perceptions will even be accused of being racist for holding such perceptions as they seek to identify what is off limits in making employment-related decisions. I imagine other people who state disagreement about some trait being "historically associated with race" may be accused of being ignorant and perhaps racist or at least not race-sensitive (e.g., for demonstrating a lack of awareness that something allegedly is a "trait historically associated with race").

Many of us who are passionate about this issue have fought against activation of stereotypes for years. Many zealously argue that people should be treated as individuals and maintain that stereotypes should be rejected or at least not activated in prejudging people. Doesn't this bill necessitate the enshrining of some body of stereotypes as actually being "traits historically associated with race" while other stereotypes are rejected . . . at least until some later date when they cross some unspecified threshold of "historical association"?

Perhaps this bill is mere "virtue signalling." But I certainly hope it is well intended, meant to address a perceived problem -- even though I have consulted with hundreds of clients on both the employee and employer sides and have never heard of it as an issue until now. Regardless, I feel the bill misses the mark in a major and damaging way through its vagueness and broadness. I smell litigation in those flaws. As an attorney who proudly and zealously represents both employers and employees, law that creates compliance difficulty and litigation benefits me through business. But I cannot bring myself to celebrate when I see such things coming. I respect the rule of law. As such, I will advocate for people who believe they are aggrieved under the law -- including under law that I do not personally support (although I always reserve the right to seek change to the law). I will also advise employers to the best of my ability regarding how to comply with the law -- and encourage them to follow it (and seek to change it if they disagree with it). But an opportunity exists here and now.

Because this bill is not yet law, it is not too late for law makers to consider that the bill is too vague and perhaps not even ultimately needed or prudent. Of course, thoughtful people may disagree with me. I respect that. Regardless, I urge those proposing to make law like Delaware Senate Bill 192 to NOT pass the burden of fleshing out the meaning of the law onto someone else. In my view, it is (or should be) the job of competent legislators to say what they mean and make that meaning clear for those of us who seek to comply with the rule of law. But that is just my opinion.

Whether you are in support of or in opposition to Delaware Senate Bill 192, consider making your voice heard on this issue by contacting your representative in Dover. It matters. I hope.