Updated on January 3, 2022
Occupational Licensing Laws: Threading the Needle Between Consumer Protection and the Constitutional Right to Earn a Living
Marshall is a 3L at University of Kansas School of Law. He is a second-career law student with nearly a decade in various operational management roles. Outside of law school, Marshall enjoys watching sports, playing fantasy football, and spending time with his wife and dog.
A proliferation of occupational licensing laws has increased the percentage of the US workforce in an occupation requiring a state license from 5% in the 1950’s to nearly 30% by 2006.[i] These occupational licensing laws, aimed at protecting consumers, often result in unintended consequences and actually reduce consumer welfare by increasing the cost of products and services and providing consumers fewer choices.[ii] As problematic as these externalities can be on consumers, the burdens occupational licensing laws place on racial minorities and economically disadvantaged groups is even more concerning.[iii]
Since Civil War times, licensing measures and laws have been a common tool used to subjugate minority groups and “stifle black economic progress.”[iv] Unfortunately, such practices continue in more recent times.[v] Indeed, occupational licensing requirements disproportionately burden lower earners, those less educated, minorities, and people re-entering the work force.[vi] Licensing laws commonly target vocations such as hair styling and exercise instruction that could offer a path out of poverty if not for onerous licensing requirements[vii] and particularly burden those with the skills to contribute but lack resources to meet licensure requirements or complete formal training.[viii]
One such example of a burdensome licensing requirement in Kansas is that placed upon eyebrow threaders. Eyebrow threading involves the removal of eyebrow hair with a strand of cotton thread and is considered non-invasive and safe. However, it a class C misdemeanor to practice eyebrow threading without a license.[ix] Threaders must graduate from an esthetician school, which costs thousands of dollars and consists of at least 1,000 hours of instruction and practice (which equates to nearly 6 months of training 40 hours per week).[x] Less than 1% of the required 1,000 hours is spent on threading.[xi]
As applied to threaders, these licensing requirements might not pass constitutional muster as being unreasonable, arbitrary, and not tailored to the practice of threading. For example, Jigisha Modi, who immigrated to the US in 1997 from India is challenging the constitutionality of these licensing requirements under Sections 1, 2, and 18 of the Kansas Constitution Bill of Rights.[xii] Specifically, Jigisha would like to hire her mother-in-law to work as a threader in her licensed esthetics business. However, despite her mother-in-law’s nearly thirty years of threading experience, she is unable to work in Jigisha’s threading salon as she is unable to obtain a license.
Based on recent Kansas Supreme Court precedent, it would appear that Jigisha’s prospect of success is positive. As the Kansas Supreme Court noted in Hodes when recognizing that unenumerated Lockean Natural Rights were protected under Section 1 of the Kansas Bill of Rights, “every Man has a Property in his own Person.”[xiii] Property in one’s own person includes the right to earn a living by engaging in labor (which Locke believed was the foundation of property rights).[xiv]
While a higher level of scrutiny is likely justified for a burden on such a Lockean Natural Right (notwithstanding potential equal protection concerns), the licensing requirements as applied to threaders seemingly do not even satisfy rational basis review as comparable cosmetology licensing regimes in other states have failed to do.[xv] For instance, in Patel v. Texas Department of Licensing and Regulation, the Supreme Court of Texas found a less onerous threader licensing requirement (that required just 750 hours of schooling) violated the Texas Constitution.[xvi] The requirement that would-be threaders spend hundreds of hours on matters unrelated to threading is not rationally related to the government interest of protecting consumers.
The licensing requirement for threaders is but one of many Kansas occupational licensing laws that disproportionally burden racial minorities and economically disadvantaged groups. Perhaps it is time to view these occupational licensing requirements skeptically in fields such as hair styling, exercise instruction, and pest control and ensure that any licensing requirement that burdens the right to earn a living is reasonable, non-arbitrary, and appropriately tailored to the specific occupation.
[i] Will Clark, Intermediate Scrutiny as a Solution to Economic Protectionism in Occupational Licensing, 60 St. Louis U. L.J. 345, 345 (2016).
[ii] Joseph Sanderson, Note, Don’t Bury the Competition: The Growth of Occupational Licensing and a Toolbox for Reform, 31 YALE J. ON REG. 455, 455 (2014).
[iii] Id. at 460; Stuart Dorsey, Occupational Licensing and Minorities, 7 L. & HUM. BEHAV. 171, 172 (1983); David E. Bernstein, Licensing Laws: A Historical Example of the Use of Government Regulatory Power Against African-Americans, 31 SAN DIEGO L. REV. 89, 90 (1994).
[iv] Todd W. Shaw, Rationalizing Rational Review, 112 NW L. Rev. 487, 514; Bernstein, supra note iii, at 90.
[v] Walter Gellhorn, The Abuse of Occupational Licensing, 44 U. CHI. L. REV. 6, 18 (1976).
[vi] Alexandra L. Klein, The Freedom to Pursue a Common Calling: Applying Intermediate Scrutiny to Occupational Licensing Statutes, 73 WASH. & LEE L. REV. 411, 430 (2015).
[vii] Dick M. Carpenter II, Lisa Knepper, Angela C. Erickson & John K. Ross, LICENSE TO WORK: A NATIONAL STUDY OF BURDENS FROM OCCUPATIONAL LICENSING 10 tbl.1 (May 2012).
[viii] Roger V. Abbott, Is Economic Protectionism a Legitimate Governmental Interest Under Rational Basis Review?, 62 CATH. U. L. REV. 475, 501 (2013).
[ix] KSA §65-1902(e); KSA § 65-1901(e)(1–2).
[x] KAR § 69-1-1; KSA § 65-1903(a)(2)(F)(2).
[xii] Modi v. Kan. State Bd. of Cosmetology, No. 2020-CV-000595 (Kan. 3d Jud. Dist. Ct. Nov 16, 2020).
[xiii] Hodes & Nauser, MDs, P.A. v. Schmidt, 440 P.3d 461, 480 (Kan. 2019) (quoting John Locke Two Treatises, Bk. II, §27).
[xiv] Timothy Sandefur, The Right to Earn a Living, 6 Chap. L. Rev. 207, 221 (2003).
[xv] See Cornwell v. Hamilton, 80 F.Supp. 2d 1101, 1118–19 (S.D. Cal. 1999); Clayton v. Steinagel, 885 F. Supp. 2d 1212, 1215–16 (D. Utah 2012); Waugh v. Nev. State Bd. of Cosmetology, 36 F. Supp. 3d 991, 1022 (D. Nev. 2014); Brantley v. Kuntz, 98 F. Supp. 3d 884, 894 (W. D. Tex. 2015).
[xvi] Patel v. Texas Dep’t of Licensing & Regul., 469 S.W.3d 69, 91 (Tex. 2015).