¿Me pueden discriminar en un trabajo por el pelo? ¿En el colegio?
Qué pasa cuando la persona tiene un estilo particular de pelo que confronta con el de la escuela, institución educativa o ámbito laboral
Algunos establecimientos tienen regulaciones sobre el corte de pelo del trabajador. Mismo en escuelas y colegios hay restricciones que pueden pedir, ¿Pero qué tan razonables son? ¿Hasta qué punto es un derecho fundamental llevar el pelo como la persona quiera?
En estos casos, el punto a evaluar es la tensión entre dos derechos claros. Por un lado, la facultad de dirección del empleador y las potestades disciplinarias de un establecimiento educativo, ley 20744 y ley de educación, respectivamente.
Por otro lado, la forma de llevar el pelo, el cabello, el color, corte y demás forma parte de la libre expresión, un derecho fundamental y que es básico. Sobre los derechos fundamentales del trabajador ver esta nota.
California, por ejemplo, pretende resolver esta cuestión con una ley que expresamente permite trenzas, rastas o lo que al trabajador se le ocurra en el lugar de trabajo y escuelas. Por ahora fue aprobada en el Senado y será tratada por la Assembly, que es como la cámara de diputados.
El punto en Argentina es evaluar la razonabilidad (artículo 28 CN) de la medida, es decir, qué tan necesaria es con el fin (legítimo buscado) y qué proporcionalidad tiene esa restricción al derecho fundamental. Veamos.
Requisitos para que un trabajo o escuela pueda regular el uso del pelo
En forma análoga con la remera y ropa de un trabajador (ver esta nota), para que haya una regulación del pelo o cabello debe haber:
1. Un reglamento general y comunicado a todo empleado o alumno
2. Cláusulas específicas que expliquen claramente la restricción
3. Que esa restricción tenga relación con lo que se busca, con la imagen a transmitir
Por ejemplo, un hotel podría pedir a los trabajadores de atención al público el pelo recogido. O que no tengan barba como ha pasado con los choferes de micros, que al final se ha resuelto judicialmente a favor del trabajador (ver acá).
4. Que esa restricción no pueda alcanzarse por otros medios
Por ejemplo, a un/a trabajador/a de cocina le podrían pedir el pelo corto. O bien podrían pedir que se use cofia. Si la intención es evitar que caigan pelos en la comida, pues entonces alcanza con el gorro.
5. Hay que ver si hay atención al público o no. A nivel interno, en general, suele ser más flexible la regulación.
Es cuestión de evaluar entonces la necesidad y proporcionalidad de la medida. Compatibilizar ambas exigencias, deberes y derechos, para una coexistencia pacífica en una sociedad plurar y democrática.
En ciertos casos se preferirá evitar el conflicto pero en otros debe ponderarse con las creencias o necesidades de un trabajador en un caso concreto, tarea que se difiere para los jueces.
Podés dejar tu comentario abajo.
Anexo con nuevo proyecto de ley de California, aprobado por el Senado
SB-188 Discrimination: hairstyles.(2019-2020)
SHARE THIS:share this bill in Facebookshare this bill in Twitter Date Published: 04/02/2019 09:00 PM
AMENDED IN SENATE APRIL 02, 2019
AMENDED IN SENATE MARCH 14, 2019
CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION
SENATE BILL No. 188
Introduced by Senator Mitchell
(Coauthor: Assembly Member McCarty)
January 30, 2019
An act to amend Section 212.1 of the Education Code, and to amend Section 12926 of the Government Code, relating to discrimination.
LEGISLATIVE COUNSEL’S DIGEST
SB 188, as amended, Mitchell. Discrimination: hairstyles.
Existing law states the policy of the State of California to afford all persons in public schools, regardless of their disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other specified characteristic, equal rights and opportunities in the educational institutions of the state, and states that the purpose of related existing law is to prohibit acts that are contrary to that policy and to provide remedies therefor. Existing law defines race or ethnicity for these purposes.
Under the California Fair Employment and Housing Act, it is unlawful to engage in specified discriminatory employment practices, including hiring, promotion, and termination based on certain protected characteristics, including race, unless based on a bona fide occupational qualification or applicable security regulations. The act also prohibits housing discrimination based on specified personal characteristics, including race. The act also prohibits discrimination because of a perception that a person has one of those protected characteristics or is associated with a person who has, or is perceived to have, any of those characteristics. Existing law defines terms such as race, religious beliefs, and sex, among others, for purposes of the act.
This bill would provide that the definition of race for these purposes also include traits historically associated with race, including, but not limited to, hair texture and protective hairstyles, and would define protective hairstyles for purposes of these provisions.
Vote: majority Appropriation: no Fiscal Committee: yes Local Program: no
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the following:
(a) The history of our nation is riddled with laws and societal norms that equated “blackness,” and the associated physical traits, for example, dark skin, kinky and curly hair to a badge of inferiority, sometimes subject to separate and unequal treatment.
(b) This idea also permeated societal understanding of professionalism. Professionalism was, and still is, closely linked to European features and mannerisms, which entails that those who do not naturally fall into Eurocentric norms must alter their appearances, sometimes drastically and permanently, in order to be deemed professional.
(c) Despite the great strides American society and laws have made to reverse the racist ideology that Black traits are inferior, hair remains a rampant source of racial discrimination with serious economic and health consequences, especially for Black individuals.
(d) Workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks, have a disparate impact on Black individuals as these policies are more likely to deter Black applicants and burden or punish Black employees than any other group.
(e) Federal courts accept that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, and therefore protects against discrimination against afros. However, the courts do not understand that afros are not the only natural presentation of Black hair. Black hair can also be naturally presented in braids, twists, and locs. locks.
(f) In a society in which hair has historically been one of many determining factors of a person’s race, and whether they were a second class citizen, hair today remains a proxy for race. Therefore, hair discrimination targeting hairstyles associated with race is racial discrimination.
(g) Acting in accordance with the constitutional values of fairness, equity, and opportunity for all, the Legislature recognizes that continuing to enforce a Eurocentric image of professionalism through purportedly race-neutral grooming policies that disparately impact Black individuals and exclude them from some workplaces is in direct opposition to equity and opportunity for all.
SEC. 2. Section 212.1 of the Education Code is amended to read:
212.1. (a) “Race or ethnicity” includes ancestry, color, ethnic group identification, and ethnic background.
(b) “Race” is inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.
(c) “Protective hairstyles” includes, but is not limited to, such hairstyles as braids, locks, and twists.
SEC. 2.SEC. 3. Section 12926 of the Government Code is amended to read:
12926. As used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context:
(a) “Affirmative relief” or “prospective relief” includes the authority to order reinstatement of an employee, awards of backpay, reimbursement of out-of-pocket expenses, hiring, transfers, reassignments, grants of tenure, promotions, cease and desist orders, posting of notices, training of personnel, testing, expunging of records, reporting of records, and any other similar relief that is intended to correct unlawful practices under this part.
(b) “Age” refers to the chronological age of any individual who has reached a 40th birthday.
(c) Except as provided by Section 12926.05, “employee” does not include any individual employed by that person’s parent, spouse, or child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.
(d) “Employer” includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:
“Employer” does not include a religious association or corporation not organized for private profit.
(e) “Employment agency” includes any person undertaking for compensation to procure employees or opportunities to work.
(f) “Essential functions” means the fundamental job duties of the employment position the individual with a disability holds or desires. “Essential functions” does not include the marginal functions of the position.
(1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:
(A) The function may be essential because the reason the position exists is to perform that function.
(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.
(C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function.
(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:
(A) The employer’s judgment as to which functions are essential.
(B) Written job descriptions prepared before advertising or interviewing applicants for the job.
(C) The amount of time spent on the job performing the function.
(D) The consequences of not requiring the incumbent to perform the function.
(E) The terms of a collective bargaining agreement.
(F) The work experiences of past incumbents in the job.
(G) The current work experience of incumbents in similar jobs.
(g) (1) “Genetic information” means, with respect to any individual, information about any of the following:
(A) The individual’s genetic tests.
(B) The genetic tests of family members of the individual.
(C) The manifestation of a disease or disorder in family members of the individual.
(2) “Genetic information” includes any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual.
(3) “Genetic information” does not include information about the sex or age of any individual.
(h) “Labor organization” includes any organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection.
(i) “Medical condition” means either of the following:
(1) Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer.
(2) Genetic characteristics. For purposes of this section, “genetic characteristics” means either of the following:
(A) Any scientifically or medically identifiable gene or chromosome, or combination or alteration thereof, that is known to be a cause of a disease or disorder in a person or that person’s offspring, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder.
(B) Inherited characteristics that may derive from the individual or family member, that are known to be a cause of a disease or disorder in a person or that person’s offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.
(j) “Mental disability” includes, but is not limited to, all of the following:
(1) Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:
(A) “Limits” shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.
(B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.
(C) “Major life activities” shall be broadly construed and shall include physical, mental, and social activities and working.
(2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.
(3) Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.
(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.
(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).
“Mental disability” does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.
(k) “Military and veteran status” means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.
(l) “On the bases enumerated in this part” means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.
(m) “Physical disability” includes, but is not limited to, all of the following:
(1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:
(A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.
(B) Limits a major life activity. For purposes of this section:
(i) “Limits” shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.
(ii) A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.
(iii) “Major life activities” shall be broadly construed and includes physical, mental, and social activities and working.
(2) Any other health impairment not described in paragraph (1) that requires special education or related services.
(3) Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.
(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult.
(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2).
(6) “Physical disability” does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.
(n) Notwithstanding subdivisions (j) and (m), if the definition of “disability” used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (j) or (m), or would include any medical condition not included within those definitions, then that broader protection or coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of, the definitions in subdivisions (j) and (m).
(o) “Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status” includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.
(p) “Reasonable accommodation” may include either of the following:
(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.
(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
(q) “Religious creed,” “religion,” “religious observance,” “religious belief,” and “creed” include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. “Religious dress practice” shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed. “Religious grooming practice” shall be construed broadly to include all forms of head, facial, and body hair that are part of an individual observing a religious creed.
(r) (1) “Sex” includes, but is not limited to, the following:
(A) Pregnancy or medical conditions related to pregnancy.
(B) Childbirth or medical conditions related to childbirth.
(C) Breastfeeding or medical conditions related to breastfeeding.
(2) “Sex” also includes, but is not limited to, a person’s gender. “Gender” means sex, and includes a person’s gender identity and gender expression. “Gender expression” means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.
(s) “Sexual orientation” means heterosexuality, homosexuality, and bisexuality.
(t) “Supervisor” means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
(u) “Undue hardship” means an action requiring significant difficulty or expense, when considered in light of the following factors:
(1) The nature and cost of the accommodation needed.
(2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.
(3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.
(4) The type of operations, including the composition, structure, and functions of the workforce of the entity.
(5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.
(v) “National origin” discrimination includes, but is not limited to, discrimination on the basis of possessing a driver’s license granted under Section 12801.9 of the Vehicle Code.
(w) “Race” is inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.
(x) “Protective hairstyles” includes, but is not limited to, such hairstyles as braids, locks, and twists.