Page 7 - Fashion Law

NYLJ.COM | Fashion Law | MONDAY, AUGUST 28, 2017 | S7
Focusing on Labor and Employment Issues Will Always Be in Fashion
TBY PHILIP M. BERKOWITZ
he fashion industry is, perhaps more than most, built on image. Brands implore us, through their
use of cultural cues, models, product, and studies and guesses about what’s now or next or what’s best kept preserved as classic or chic, to accept as ours the identity they project. Building these images, however, sometimes clashes with, or is perceived to clash with, societal norms and anti-bias laws.
Discrimination laws are not the only challenges facing fashion retailers, but the need to build and project a particular image accounts for many of the employment law problems unique to the industry. Beyond the issue of employment, ugly claims of racial profiling or exclusion surface from time to time, where a retailer is accused of harassing minority shoppers on the theory that they are in the store not to shop, but to shoplift.
Fashion is one of the most diverse indus- tries in the modern world. Everyone gets dressed in the morning, and almost every- one, regardless of race, creed, color, sexual orientation, and so forth, is interested in how they look. Walk into almost any house of high couture and you will see employees of color, gay and straight, male and female.
Claims of unfair treatment of employees or shoppers can cause tremendous brand dam- age, whether or not the allegations are truth- ful. Fashion consumers, as well as employees, identify with the brand in a personal way. Shoppers may avoid a brand they perceive as unfair to a group or class of employees, and claims like this can hinder recruitment and retention of employees.
Of course, employers in every industry are challenged to consider their brand image, and that of their employees and sales force, and how they reflect their brands. Histori- cally, in entertainment, sports, and even the traditional workforce, minorities have claimed that they have been excluded, in the name of customer preference or just plain bias, from certain positions.
But the fashion industry may be unique- ly vulnerable. How can a brand embrace a particular image without seeming to reject another?
For high fashion, attention to fairness in hiring and treating customers must take
PHILIP M. BERKOWITZ, a shareholder of Littler Men- delson and co-chair of the firm’s U.S. international employment law and financial services practices, represents many luxury brands in his practice.
high priority. Fashion companies must head off any such claims before they are raised. First, of course, the message must come from the top that diversity is part and indeed essential to the brand. This must be reflected in fair and unbiased hiring and pro- motion practices, and made clear in external and internal messaging, including internal policies, training, advertising and online marketing.
Managers who send a message that they do not welcome minority shoppers may have a devastating effect on employee morale as well as the public’s perception of the brand as welcoming or something less than that.
by their dress and demeanor, demonstrate the persona of the brand.
Claims of disability discrimination have often been directed at luxury retailers. Fashion companies, like all others, must reasonably accommodate employees with disabilities—those who require leaves of absence that may prove burdensome to a
Based on that expectation, they ask that sales associates, when scheduled to work on the sales floor, be standing and ready to move around the floor to welcome and assist customers with their selections and purchases and to otherwise be active in merchandising and monitoring the floor.
Of course, sales duties usually require that employees retrieve merchandise that may be located low or high, or in various places in the store—the employee may even need to go to a stock room to retrieve inventory.
Thus, while of course employees may sit while they are on break, or request a break to sit down when they must, sales staff are generally expected to be standing—both when shoppers enter the store and while they are doing their shopping.
No-sitting rules have been challenged on several grounds—principally by employees who claim to be disabled and that the rules constitute unlawful discrimination or a fail- ure to accommodate a disability.
The Americans With Disabilities Act (ADA) requires employers to enter into an interac- tive process with employees who present themselves as disabled and who state that they are unable to stand. The purpose of the interactive process is to determine how the employer may reasonably accommodate the employee and permit them to accomplish the job’s essential functions.
A hard and fast rule mandating that sales employees must always stand—even when customers are in the store—may not pass muster in every case. Depending on the particular layout of the store and the job duties, there may be ways to accommo- date a disabled employee. The employer’s preference that, even in a luxury environ- ment, the employee must present a cer- tain image and that an ability to stand is inconsistent with that image, may not be enough.
The standards are even tougher for retail- ers in New York City. The courts have held that, in contrast to the ADA, under the NYC Human Rights Law, there is no requested accommodation that is per se unreason- able. The burden of proving that a requested accommodation would pose an undue hard- ship rests squarely on the employer. Fur- ther, it is the employer’s burden, under the NYC law, to prove as an affirmative defense that the employee could not perform the essential requisites of her job with a rea- sonable accommodation—that is, that the employee could not do her job well if she were seated. Under the federal and state law, however, the employee bears the bur- den of proving that she is able to do her job even if she were permitted to remain seated. » Page S10
All employees must understand that the company will not tolerate discrimination against any minority group.
No-Sitting Rules
Certain aspects of the retail environment, and the operation of the sales floor in high fashion, lend themselves to claims of bias. Brands expect their employees to project the brand’s image while doing their jobs. Not only must employees look good—they must,
schedule, particularly during high season; those whose disability affects their appear- ance, whether because of a pre-existing condition or because they suffer injuries or as a result of surgery; and those who may, as a result of a disability, communi- cate differently from other, non-disabled employees.
One particularly visible issue that has arisen in recent years has been challeng- es to employers’ requirements that their employees remain standing while working. This issue, and the way the courts have dealt with it, is illustrative of the problems facing fashion retailers—many of whose employees are required to directly interact with custom- ers all day long.
To best meet customer needs, most high- fashion retailers expect sales employees to be dynamic and energetic when greeting and working with customers in the store.
LDPROD; RAWPIXEL; PIXSOOZ