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
The True Cost: A Fashion Documentary Behind Manufacturing--
While many see fashion and the industry at large to be frivolous and superficial, it's actually a billion-dollar market with many very serious issues. Garment production is one of the most serious--especially when it comes to the working conditions employees are subject to.
The fast-fashion niche, you know--the likes of Forever 21, H&M, Zara, etc.--have created their own place in the industry. This segment has many positives, particularly for young shoppers, shoppers on a budget, and anyone needing something trendy in a hurry. However, negatives have come along with this market, too. They've been on the receiving end of lawsuits for infringement on high fashion/designer styles, discriminatory hiring practices, and the labor conditions of their factories. Fast-fashion is all about filling the racks in a hurry. Someone has to make those garments--often under harsh conditions.
Things have changed drastically over the last few decades. In the 1960s, 95% of American attire was made right here in the states. Now, that number is flipped to about 97% produced overseas.
Executive Producer Livia Firth of The True Cost, a documentary digging deep into a number of these issues, noted at the NY screening "We are sold this myth that to buy a dress for under $10 is democratic--but it's democratic for who? We discard faster and faster, and that is how the consumer becomes poorer and poorer. 2 of the 10 richest men in the world are the owners of Zara and H&M. I think it says a lot about how they make their money."
Her film delves into the realities of factory workers in places like Bangladesh and Columbia. It puts a face behind the garments so many throw on and throw away. Stepping far behind the scenes of your favorite mall stop, you'll see a story behind every thread, of people who can't afford what they make, and what they endure during production.
Check the trailer. This is a must-see.
The True Cost is currently available on iTunes, Amazon, DVD, and Blu-ray.
For more on labor issues in fashion, click here.
While many see fashion and the industry at large to be frivolous and superficial, it's actually a billion-dollar market with many very serious issues. Garment production is one of the most serious--especially when it comes to the working conditions employees are subject to.
The fast-fashion niche, you know--the likes of Forever 21, H&M, Zara, etc.--have created their own place in the industry. This segment has many positives, particularly for young shoppers, shoppers on a budget, and anyone needing something trendy in a hurry. However, negatives have come along with this market, too. They've been on the receiving end of lawsuits for infringement on high fashion/designer styles, discriminatory hiring practices, and the labor conditions of their factories. Fast-fashion is all about filling the racks in a hurry. Someone has to make those garments--often under harsh conditions.
Things have changed drastically over the last few decades. In the 1960s, 95% of American attire was made right here in the states. Now, that number is flipped to about 97% produced overseas.
Executive Producer Livia Firth of The True Cost, a documentary digging deep into a number of these issues, noted at the NY screening "We are sold this myth that to buy a dress for under $10 is democratic--but it's democratic for who? We discard faster and faster, and that is how the consumer becomes poorer and poorer. 2 of the 10 richest men in the world are the owners of Zara and H&M. I think it says a lot about how they make their money."
Her film delves into the realities of factory workers in places like Bangladesh and Columbia. It puts a face behind the garments so many throw on and throw away. Stepping far behind the scenes of your favorite mall stop, you'll see a story behind every thread, of people who can't afford what they make, and what they endure during production.
Check the trailer. This is a must-see.
The True Cost is currently available on iTunes, Amazon, DVD, and Blu-ray.
For more on labor issues in fashion, click here.
B.A.F.F.L.E.D. Fashion Law
The Battle of Counterfeits in Big Cities, Part 3--
Not too long ago, we started talking about the fight large American cities have against counterfeits in their markets. We discussed how they get to the market, and what legislatures and law enforcement are doing to counter the problem. Today, we're taking things a little bit further. Here are 3 additional points about the counterfeit market.
Counterfeits v. Employment
The Cost Hits Local Governments, Too
It doesn't get the news coverage it may deserve to help alleviate it, but the fake trade has been linked to drug trafficking, child labor, and even terrorism. Counterfeiting often feeds drug rings and are literally accessories in human trafficking. Further, children are frequently used to produce illegal items. The Zara factory in Argentina was investigated and shut down earlier this year because of poor working conditions, no breaks for adult workers, and consistent use of children in their labor force. The investigation also included a search into whether or not unauthorized products were made. The gray market is heavily sustained by child labor.
Not too long ago, we started talking about the fight large American cities have against counterfeits in their markets. We discussed how they get to the market, and what legislatures and law enforcement are doing to counter the problem. Today, we're taking things a little bit further. Here are 3 additional points about the counterfeit market.
Counterfeits v. Employment
Counterfeits are directly responsible for the loss of over 750,000 American jobs. As we mentioned before, having particular global locations be responsible for certain pieces in the economic cycle is not a bad idea. it works well in many ways. However, having local jobs is necessary in every nation. It may be more efficient for a nation or city to produce certain products because of their climate or other unique settings. But, moving jobs overseas to keep profits sky high is not helpful to the overall economy. It is also a detriment to the receiving nations, where they often work for wages and in conditions Americans would never accept. We also can't forget how much counterfeits cost the actual brands. This starts a chain reaction as well. International copyright piracy has cost U.S. companies $9billion in trade losses.
The Cost Hits Local Governments, Too
In NYC alone, counterfeit sales cost residents about $1billion in lost sales tax. This is doing the same in places like Chicago, Atlanta, LA and other areas with large fashion constituencies. Local governments are already struggling to keep services and necessities available. Missing additional tax revenue is not helpful. Sure, some tourists make it a point to visit the counterfeit markets when traveling, but this takes away from the money used for local infrastructure and contributes to the financial hardships in which many cities have found themselves.
There is a Social Cost
There is a Social Cost
It doesn't get the news coverage it may deserve to help alleviate it, but the fake trade has been linked to drug trafficking, child labor, and even terrorism. Counterfeiting often feeds drug rings and are literally accessories in human trafficking. Further, children are frequently used to produce illegal items. The Zara factory in Argentina was investigated and shut down earlier this year because of poor working conditions, no breaks for adult workers, and consistent use of children in their labor force. The investigation also included a search into whether or not unauthorized products were made. The gray market is heavily sustained by child labor.
Harper's Bazaar has been extremely active in the battle against counterfeits in their Fakes are Never in Fashion campaign. Check them out and see what you can do to help keep fakes out of the market.