Caste, Weight Emerge Among Expanding Bias-Protected Traits

Height and weight in New York City. Caste in Seattle. Traditionally Black hairstyles and textures in Michigan and Texas. Marital status in Colorado.

The lists of protected classes under anti-discrimination laws have expanded in novel ways this year in cities and states, barring workplace bias for characteristics not historically spelled out in civil rights statutes. New anti-bias laws cover categories such as reproductive health choices, criminal histories, and even polyamorous relationships in the case of one Massachusetts town.

The expansions are predominantly in jurisdictions led by Democratic lawmakers, and contrast sharply with moves in some red state legislatures to roll back protections for groups, including LGBTQ+ people. The changes in protected classes will also require businesses to revisit how they manage employment decisions and litigation risks.

The anti-bias laws’ sponsors are “showing a commitment to protecting groups that have been historically marginalized or penalized for just being themselves,” said Jennifer L. Colvin, a labor and employment lawyer with Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Chicago. “It’s a trend we’re going to continue to see, particularly in those states that are a little bit more progressive.”

CROWN Act Momentum

The most widespread of the new discrimination protections is the CROWN Act, which prohibits workplace bias against protective hairstyles such as braids and locs as well as natural textures that are associated with race.

After first passing in California and New York in 2019, these bills have gained traction and become law in more than 20 states and dozens of cities, most recently in Michigan, Minnesota—and even Texas.

The Texas passage marked a big win for CROWN supporters, given the state’s size and conservative-leaning legislature.

“We were able to ensure the need for the bill was communicated in a way that resonated across racial groups, across party lines, and overwhelmingly in both chambers” of the Texas statehouse, said Adjoa B. Asamoah, a political consultant who developed the CROWN Act concept in 2018.

Asamoah is working with local bill sponsors in more cities and states, but the ultimate goal is to get the CROWN Act enacted nationwide, she said. The US House of Representatives under previous Democratic control passed the CROWN Act twice, but the measure hasn’t advanced through the Senate.

The CROWN Act isn’t the only measure showing signs of momentum to spread across the country. Months after Seattle became the first US city to explicitly ban caste discrimination, a similar proposal has won approval in the California Senate and awaits an Assembly vote.

Allegations within the California tech industry, including a lawsuit against Cisco Systems Inc., have drawn attention to caste discrimination. Caste is a system of rigid social stratification that’s estimated to affect 250 million people globally, primarily of South Asian descent.

New York City’s new law that bans discrimination against a worker based on their height and weight is also inspiring bills in other jurisdictions, including New Jersey and Vermont.

Obesity also can be treated as a disability that requires workplace accommodations in certain circumstances. But the New York City law gives explicit protection against bias based on a worker’s size, without the worker having to rely on a separate category in civil rights statutes.

Michigan, Minnesota Blue Wave

Though New York and California are perhaps the states best-known for passing new employment protections, a lot of progress on anti-bias bills has come far from the coasts this year.

Michigan and Minnesota expanded their anti-bias laws to include versions of the CROWN Act and other protections. Democrats there are pursuing aggressive agendas—including a repeal of Michigan’s anti-union “right to work” law and passage of a paid family leave program in Minnesota—after winning full statehouse control plus retaining the governors’ offices in both states in 2022.

Michigan lawmakers also expanded the state’s ban on discrimination against workers who have abortions, and codified protections against anti-LGBTQ+ bias in state law, reinforcing the policy position of Michigan’s civil rights agency.

Employers in the Midwest also saw changes to anti-bias law this year in Chicago. The city expanded on last year’s bodily autonomy ordinance to specifically ban employment and housing discrimination based on a person’s reproductive health choices and their receipt of gender-affirming health care.

The new Chicago law mirrors efforts from several blue states to protect abortion rights following the Supreme Court’s 2022 Dobbs decision, including California’s passage of a ban on discrimination based on a worker’s reproductive health choices last year.

Chicago also heightened restrictions on how employers use a job applicant’s or employee’s criminal history in making employment decisions, aligning that policy with existing state law in Illinois.

Farther west, Colorado expanded its anti-bias laws by adding marital status as a protected class, as part of a broader worker protection measure. That new law also lowered the legal standard for workers to claim harassment on the job, getting rid of the need to show the alleged conduct was “severe and pervasive.”

In separate legislation, Colorado lawmakers sought to combat age discrimination in hiring by restricting employers’ ability to ask age-related questions on job applications. The measure mirrors existing limits on job application age queries in a handful of other states.

Culture Wars

While there were plenty of legislative victories, not every proposal to grow protected classes in a novel way made it across the finish line.

A New York City bill to ban discrimination against workers with tattoos as well as a statewide New York bill proposing to ban discrimination based on a worker’s caregiver role failed to advance, for instance.

Increased worker protections have come against a backdrop of culture wars, particularly over LGBTQ+ issues, playing out in state legislatures and courts, said Michelle E. Phillips, an attorney with Jackson Lewis P.C. in New York.

“At the same time that there’s an expansion of rights, there’s also a retrenchment of rights. It’s difficult for employers to navigate,” Phillips said.

Much of that retrenchment isn’t directly tied to employment, such as state laws banning gender-affirming care for minors or the Supreme Court’s June 30 decision allowing certain businesses to discriminate against LGBTQ+ customers, she said.

But she noted these changes “still have a tremendous impact in the workplace,” in terms of managers’ and employees’ perceptions about race, gender, discrimination, and harassment.

Employers and managers may be able to eliminate some of the confusion that comes with complying with a patchwork of emerging anti-bias laws by adjusting their views and avoiding the temptation to stereotype workers.

Businesses have often thought “you have to look a certain way to fit into a corporate culture which is based on some image or perception of what the company thinks customers want to see,” Phillips said, particularly in customer-facing jobs. “The idea of a look-ism policy by a company is just no longer acceptable.”