Image is almost everything in fashion, but when a carefully crafted branding message tramples on employees’ identities, regulators are more ready than ever to step in — especially in New York City, which is leading the charge.
“In the fashion industry, a lot of it is the look,” said Bob Tracy, partner at Gibney Anthony & Flaherty LLP, who advises fashion companies on employment issues. “And to the extent that they want a specific look, they have to be more careful in light of the new guidance from New York City, both with respect to hair, and with respect to not restricting employees’ clothing choices based on gender.”
The New York City Commission on Human Rights, which enforces the city’s antidiscrimination law in housing and employment, took broad steps this year to protect employees’ personal expression in the workplace.
In February, it clarified for the first time that the city’s human rights law, which prohibits discrimination, applies to racial discrimination on the basis of hairstyle and texture, including natural hair and African American hairstyles such as braids, Afros and cornrows. In March, the commission adopted a final rule barring discrimination on the basis of gender identity and expression, and the enforcement guidance that preceded it detailed how employers must use pronouns and terms of address that match employees’ gender identity.
The rule change in New York signals a change in stance for regulators, calling attention to company-wide practices and culture, rather than just actions in individual cases.
But it’s not always clear whether companies respond to complaints by implementing broader policy changes or trainings.
Banana Republic moved quickly enough when an African American sales associate at its store in White Plains, N.Y., accused management of racial bias. After Destiny Tompkins, a former sales associate, claimed in 2017 that she was asked to remove her braids for looking “too urban” for the brand, the company terminated that store’s manager. Tompkins’ suit, which played out in New York state and federal court, was resolved last year.
On the Tompkins suit, a representative for the retailer’s parent company, Gap Inc., said in a statement last week that the incident was “completely unacceptable, counter to our policies, and in no way reflects our company’s beliefs and values,” but did not comment on whether the company had updated any internal policies since the suit or the New York hair guidance.
New York’s rules articulate antidiscrimination policies that are more detailed than the broader national framework for antidiscrimination, which is governed by Title VII of the Civil Rights Act of 1964. The federal law generally bars workplace discrimination based on religion, race and sex, but courts are still fielding questions about who exactly falls under those protected classes. In April, the U.S. Supreme Court agreed to consider whether bias over sexual orientation and gender identity amounts to discrimination on the basis of sex.
In the meantime, violations of New York City’s human rights law carry civil penalties of up to $250,000, as well as potential uncapped damages.
“It is no question that the NYC human rights law really expands the rights that employees have, way beyond what you might get under federal law or even under New York state law,” said Laurie Berke-Weiss, principal attorney of boutique employment firm Berke-Weiss Law PLLC, who represents both employers and employees.
One central issue for fashion brands is how they can craft an image without running afoul of some of the more detailed workplace discrimination laws at the local level. Shifting certain employees away from client-facing roles, for instance, or requiring strict adherence to potentially restrictive or discriminatory dress codes, could be problematic, said attorneys.
“Some dress and grooming policies, although possibly under the guise of conveying a brand’s image, may be secretly coded as discrimination, and such guidance assists companies to craft appropriate policies and practices,” said Adrienne Montes of Gabay & Bowler LLP, who chairs the New York City bar association’s fashion law committee.
“Brand preferences take a back seat,” she said.
The NYC human rights commission is getting the word out about its guidance and its implications for companies including fashion brands.
Brittny-Jade Saunders, deputy commissioner for strategic initiatives at the agency, explained its enforcement guidances at a program held last week by the NYC bar association’s fashion law committee.
“If your client’s preferences are discriminatory, and you craft your policies around them, the liability is still yours,” said Saunders.