B.A.F.F.L.E.D. Fashion Law
Fab Fashion Law News from 2015--
It's the time of year--and frankly the last day--do to these listicles discussing the year that was. While we've retired our weekly Tuesday Tops feature (which still has great stuff to check out), we still like the idea of compiling solid, handy lists.
Since fashion law is our specialty, and we want you to stay as up-to-date as possible on our favorite field, we're listing the Top Fashion Law Stories of 2015. Let's hit it backwards, starting with last week...
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Fashion Law Is Back on Capitol Hill--Child Labor Laws for Fashion Shows
Blissful Ignorance: Abercrombie Can't Pretend They Didn't Know They Were Discriminating By: Dana Martin
Why You Should Care About Fashion Law By: Dana Martin
Can't wait for more fashion law news in 2016!
B.A.F.F.L.E.D. Fashion Law
Blissful
Ignorance: Abercrombie Can’t Pretend They Didn’t Know They Were Discriminating
By Dana Martin
All
fashion enthusiasts will agree that the way we dress is an important aspect of
our self-expression. For many people, clothing choices go beyond a way to
express their personal style and become a part of their religious, cultural, or
gender identity. However, in the working world, an employer has the legitimate
right to impose a dress code on his or her employees to convey a sense of
professionalism or uniformity in that business. What happens when the right of
an employer to enforce a dress code conflicts with an employee’s right to dress
in accordance with his or her beliefs? The recent Supreme Court decision, EEOC
v. Abercrombie and Fitch Stores, Inc., highlights
the importance of preserving the rights of the individuals even when they may
conflict with dress code policies.
Title VII requires
that any dress code imposed by an employer not be discriminatory towards any
one group and be enforced consistently and evenhandedly. This does not
necessarily mean that the dress codes may not be discriminatory in effect. For
example, the Abercrombie policy in question, banning any “caps” while at work,
is not outwardly discriminatory in that it targets one group over another.
Rather, no employee, regardless of religious background, was permitted to wear
a cap. The effect, however, was discriminatory against women who wore a
headscarf for religious reasons. When a policy is not outwardly discriminatory
but still has a discriminatory effect, the employer must allow accommodations
and exceptions when requested by employees whose beliefs are contrary to the
dress code, unless the accommodation would cause “undue hardship” on the
employer. An example of an undue hardship would be a safety or health issue
caused by the accommodation for which there is no other reasonable alternative.
(EEOC
v. Grand Central Partnership – sanitation workers with dreadlocks could not
be terminated for refusing to cut their dreadlocks for religious purposes so
long as they could reasonably be tied up neatly).
In the Abercrombie case, Samantha Elauf applied for a job at one of the retail
stores in Oklahoma. She impressed the assistant manager at the interview,
however, was not offered a job because her headscarf conflicted with
Abercrombie’s controversial “look
policy.” The assistant manager did not ask
about Elauf’s religious practices, rather, she assumed she
wore the scarf for faith-based reasons and assumed that she
would wear it every day. Abercrombie contended at trial that Elauf never
requested an accommodation and the manager did not actually know whether or not
her headscarf was a religious observance. Therefore – they claim – they did not
discriminate by denying her the job since all they knew was that this applicant
was violating their look policy. They assert that any suspicions about her
religious beliefs were irrelevant without actual knowledge or a request for
accommodation. The Court ruled against Abercrombie and held that you cannot
deny a prospective employee a job out of fear that they might request an
accommodation. Title VII only requires that the adverse employment action be at
least motivated in part by religious discrimination. Even though the manager
was not positive that Elauf wore a headscarf for religious purposes, she
admittedly at least suspected that to be the case and did not hire her because
of it. This is sufficient to conclude she was motivated by religious
discrimination even without actual knowledge of Elauf’s religion.
The Court recognized that this ruling may require employers to ask prospective
employees about their religious beliefs and whether they would need an
accommodation. This could potentially lead to stereotyping and uncomfortable
conversations. After all, if Elauf did not wear a headscarf for religious
purposes but rather as a personal fashion choice, Abercrombie would have been
justified in requiring that she take it off in compliance with their policy or
risk being terminated. However, the interest in preventing discrimination before
the prospective employee has even had a chance to request an accommodation
outweighs this potential for awkward conversations.
Abercrombie is no stranger to discrimination law suits. In 2004, they
settled a case in which they were accused of keeping minority
employees in back-room, stocking positions and reserving the sales floor
spots for white workers. The result was a $40 million settlement and an
agreement on Abercrombie’s part to hire diversity recruiters at the corporate
level. Even more similar, in 2011 the company settled a suit in which a Muslim
woman was fired for refusing
to remove her headscarf. Allowing headscarves was determined to be a
reasonable accommodation, and “distracting from the brand” was not considered
an “undue hardship” on Abercrombie. Here, Elauf’s case was a great victory
in taking protections for an individual’s right to dress according to their
religious beliefs in the work place one step further. The effect of this case
is that employers will not be able to use “I didn’t really know” as an excuse
to cover up discriminatory motives in hiring practices. It is important that
the court continue to recognize how important clothing choices can be to one’s
sense of self and protects that right in the work place and beyond.
B.A.F.F.L.E.D. Fashion Law
Why You Should Care about Fashion Law
By: Dana Martin
Often perceived as an elitist and
superficial industry, the lawyers who come to the defense of fashion get a bad
rap. After all, why should anyone care about protecting huge fashion and luxury
goods conglomerates like Hermès from online retailers selling fake Birkin bags? The answer is simple: the law of fashion doesn’t only exist to
protect the designers, it’s there to protect you, the consumer.
Fashion law is a broad category that
covers everything from employment issues to mergers and acquisitions. However, most of the rhetoric surrounding fashion
law focuses on protecting a brand’s trademark. So what does that mean, and why
is it important to you? According to the United States Patent and Trademark Office, a trademark is “any word, name, symbol, device, or
any combination, used or intended to be used to identify and distinguish the
goods/services of one seller or provider from those of others, and to indicate
the source of the goods/services.” So, a trademark can be anything from a logo
like the Nike “swoosh” to the red sole on
the heel of a Louboutin, so long as its purpose is to provide a signal to the
consumer about what brand is responsible for the product they are buying.
This is important because, as consumers,
we base a lot of our decision on which products to buy in which brand created
them. The brand of a product carries with it expectations of a certain level of
quality according to our past experience. Think back to the last time you were
at the grocery store. Did you decide to buy name brand paper towels or the
generic brand? You can’t test each package of paper towels in the store, so how
would you know one might be superior to another? Maybe you have tried both
kinds and have concluded that the name brand is a higher quality product. The
next time you need paper towels you are more likely to choose that brand
because your past experience has led you to expect a certain level of quality
from that product. This is called brand loyalty.
Brand loyalty exists in the fashion
industry all the way from runway couture to your everyday attire. Think about
your favorite pair of jeans that fit like a glove. When it’s time for a new
pair, that’s probably the brand you seek out at the department store. You
expect them to fit, feel, and last as long as your old ones. In an industry
like fashion where your options are seemingly limitless, when we find a brand
that seems to fit our shape, style, and budget, we reward that company with our
loyalty. Ideally, if enough people buy the clothes, the brand recognizes the
demand and keeps producing outfits that you love.
Everyone wins!
Now imagine that when you get to the grocery
store, both the name brand and the generic paper towels have almost
indistinguishable packaging. If you accidentally choose the generic brand, you
may be frustrated with the inferior quality of product that you received.
Believing you purchased the name brand, you might decide that their product is
no longer living up to your expectations, and decide that the next time you
need paper towels you will choose a different brand altogether. In this
scenario, the generic brand took advantage of the name brand’s good reputation
by tricking the consumer into purchasing it, and in the process destroyed that
consumer’s brand loyalty. And now you, as the consumer, wasted your money on a
product that you did not intend to buy.
This same concept can be true beyond household
cleaning products and especially in the fashion industry. Consumers want to be
able to make decisions about a brand based on their experiences with it, but if
they are confused about which brand they are purchasing that becomes
impossible. If a company is
selling handbags by tricking consumers into thinking they are buying a designer
bag rather than by creating their own brand loyalty, the biggest loss falls on
the consumer, who chose to spend his or her money expecting a product of a
certain quality and received a knockoff instead. Ultimately, protecting the
trademark of a brand protects that company from others trying to profit off
their good reputation, but it also protects your ability as the consumer to
make an informed purchase.
On the surface, fashion law might seem
like nothing more than a hobby for attorneys who keep the latest issue of Vogue
hidden beneath the Wall Street Journal on their desks. After a closer look,
however, it is clear that by protecting trademarks we encourage companies to
take responsibility for their products. This means a company must learn to
distinguish itself by producing higher quality goods rather than leaning on a
competitor’s hard earned reputation. This means that you, as the consumer, get to reap the
benefits of companies trying to win your loyalty by producing better quality
products.
Happy shopping!