Colorado Employment Law Update: Hair Discrimination, Paid Family Leave, and New Proposed DOL Regulations

By Lenora Plimpton

1. On September 14, 2020, the Colorado “CROWN” or “Creating a Respectful and Open World for Natural Hair Act of 2020” took effect. The purpose of the law is to prevent discrimination on the basis of “longstanding racial biases and stereotypes associated with hair texture, hair type, and protective hairstyles.” In the legislative declaration, the law notes that “society has used hair texture, hair type, and protective hairstyles, in conjunction with skin color, to classify people on the basis of race,” and that this specifically includes styles of hair used by “people of African descent” such as “locs, cornrows, twists, braids, bantu knots, or afros.”

The law amends the Colorado Anti-Discrimination Act by now defining race as “include[ing] hair texture, hair type, or a protective hairstyle that is commonly or historically associated with race” and further defines “protective hairstyle” as “such hairstyles as braids, locs, twists, tight coils or curls, cornrows, Bantu knots, Afros, and headwraps.” C.R.S. § 24-34-301. The new definition applies to CADA sections which include those that address employment practices, housing practices, public accommodations, and treatment of persons with disabilities.

For employers, this means that it is now explicitly illegal to discriminate on the basis of hairstyle. Interestingly, the new definition of race simply states that race includes “hairstyle that is commonly or historically associated with race”—but it does not say that the race of an employee needs to match the hairstyle historically associated with a race in order for the hairstyle to be protected. Conceivably, then, a White employee would be protected in wearing cornrows or “locs” (note that the term “dreadlocks” is viewed by many as offensive and should be avoided). Another interesting hypothetical that springs to mind is the “Mohawk” hairstyle, which has historical associations with various Native American tribes, Ukrainian Cossacks, and even ancient Irish (A quick internet search reveals that a 2000-year-old male bog body discovered in Ireland in 2003 was found to be wearing a “mohawk” hairstyle). Must employees now be permitted to wear a Mohawk hairstyle if they so desire? It will be interesting to see the twists and turns the law may take as the courts work to detangle these hairy issues.

Bottom line: proceed with caution when making any rules respecting the hairstyle of your employees, and update handbooks and other policies to comport with the new law.

2. Also of interest to Colorado Employers is Proposition 118, which will be decided by voters this November. This initiative is known as the “Paid Family and Medical Leave Insurance Program.” If passed, the law would create a paid family and medical leave program for employees in Colorado. The legislation provides that employers would be required to pay insurance premiums into a fund in order to provide the paid leave benefits to employees in Colorado.

It may be a relief to some employers to learn that the law, if passed, would not take effect for some time—not until January 1, 2024. The basic gist of the law is that it would give individuals up to 12 weeks of paid family and medical leave, plus an additional four weeks for individuals who suffer pregnancy or childbirth complications. The proposed law contains job protection and an anti-retaliation provision as well. If this law passes, this will be a major social change and a substantial new cost of doing business in the state.

3. Finally, it is worth noting that on September 22, 2020, the U.S. Department of Labor recently released a new proposed rule that would affect the classification of a worker as an employee vs. an independent contractor for purposes of the Fair Labor Standards Act (FLSA). The proposed rule would not affect Colorado’s own state-law based test for classification of an employee under the Colorado Wage Act. Under the DOL’s new proposal, the rulemaking would adopt an “economic reality test” by looking at whether the worker is actually in business for themselves or dependent on an employer. It would also identify two “core factors” and three other “additional guideposts” for the analysis. The core factors would relate to the “nature and degree of the worker’s control over the work” and the worker’s “opportunity for profit or loss.” U.S. Department of Labor, Proposed Rule: Independent Contractor Status under the FLSA, 29 CFR Parts, 780, 788, and 795, https://www.dol.gov/agencies/whd/flsa/2020-independent-contractor-nprm (last visited Oct. 2, 2020).

As always, if you have questions about preparing for the (potential) passage of paid leave, proactively creating a paid leave policy, avoiding discrimination, or classifying workers, consult an experienced employment attorney at Fortis Law Partners.

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