Recently enacted into law, Legislative Bill (LB) 451 amends the Nebraska Fair Employment Practices Act (NFEPA) to expand the definition of “race” to include protection against discrimination for characteristics such as skin color, hair texture, and protective hairstyles. Governor Pete Ricketts signed the legislation on May 5, and it will take effect 90 days after the current legislative session adjourns. Let’s examine the new amendment.
What new legislation covers
LB 451, introduced by Senator Terrell McKinney of Omaha, passed the legislature by a 40-4 vote (with five senators not voting) on April 29. The intent was to protect individuals against race discrimination based on characteristics associated with race, culture, and personhood, including natural and protective hairstyles. The law defines “protective hairstyles” to include braids, locks, and twists.
In legislative hearings and floor debate, the bill’s supporters claimed employers have forced some employees to straighten or trim their hair or cut off braids and dreadlocks to maintain their employment. Under the new law, employers can’t discriminate or base employment decisions on an individual’s culture-specific hair texture or hairstyle.
You’ll still be able to maintain bona fide health and safety standards that regulate characteristics associated with race and culture-specific hairstyles, however, if you can show:
· A safety policy or grooming standard is necessary to guarantee employees’ health or safety;
· You adopted the standard for nondiscriminatory reasons;
· It’s applied equally; and
· You’ve engaged in good-faith efforts to reasonably accommodate a particular applicant or employee with regard to the required standard.
For employers in most industries, however, it will likely be very difficult to establish a need for an exception to the standard.
Finally, the new law contains an exception for the Nebraska State Patrol, county sheriff’s departments, and various other law enforcement agencies as well as the Nebraska National Guard, which may continue to impose their own dress and grooming standards.
What happens next
The Nebraska Legislature is expected to end its session in very late May or early June. Therefore, the new law will go into effect sometime around September 1, 2021.
It’s too early to project the law’s full impact or the number of new employment discrimination claims it will likely generate. We may have to wait a few years to see how the claims are processed and interpreted by the Nebraska Equal Opportunity Commission and the courts. Of course, we’ll provide updates as necessary.
Attorneys Mark Schorr, Bonnie Boryca, and Heather Veik lead Erickson Sederstrom’s labor and employment group and can be reached at (402) 397-2200.