Evening bags that read “Pussy Power” hit the runway during one of the first big-name womenswear shows of New York Fashion Week. “New York fashion show to highlight #MeToo movement,” read a headline from Reuters. Rebecca Minkoff released, in lieu of an NYFW show, a collection of feminist-focused garments timed perfectly with the 2018 Women’s March. And who could forget Dior's $800 "We Should All Be Feminists" statement tees? While these might be noteworthy efforts in raising awareness, they are not enough. Not even by a long shot.
If the fashion industry is truly serious about change (and not merely relying on women's rights as the latest hot-selling trend), there is one rather simple thing it could do: Ensure that all employment contracts are devoid of mandatory arbitration clauses for sexual harassment and discrimination claims. Sure, this is not nearly as flashy or Instagrammable as say, a “Girl Power” t-shirt or a #MeToo-themed runway show, but this action is much more meaningful, as it could serve to benefit millions of women – and men – who are kept out of court every year.
As we noted last month, a significant reason why sexual harassment continues to permeate workplaces (including fashion ones) is tied to how claims of wrongdoing are handled procedurally. No small number of companies require individuals, as a condition of their employment, to sign contracts that contain a mandatory arbitration clause, such a provision stipulates that the employee will be required to resolve a dispute with his/her employer, including charges of sexual harassment, through arbitration and thus, not before a court of law.
As a practice, arbitration differs, in part, from formal litigation in that its proceedings are private (meaning that third parties cannot attend arbitral conferences and hearings), and in some cases, are completely confidential, thereby obscuring information about the proceedings from the public. More often than not, the participants in an in-house arbitration are forced to sign confidentiality agreements as a prerequisite to the settlement of the claims.
Additional considerations abound, including the fact that such out-of-court proceedings are overseen by arbitrators – or individuals that are not trained as judges – and as legal and employment experts have argued, there is a limited amount of objectivity in arbitration, at least in part because the process of choosing an arbitrator is not inherently unbiased. Since private arbitrators are usually selected and compensated by the parties to resolve a dispute (i.e., the employer), they stand to “generate inherent conflicts of interest, including the [arbitrator's] pursuit of repeat business from high-volume customers.”
In short: “Payments to free market referees raise particular concerns insofar as referees may be influenced to decide cases in favor of the party more likely to bring cases to them in the future," which would be the employer, as set forth by the court in Benjamin, Weill & Mazer v. Kors. (Note: The American Arbitration Association said it allows those initiating an arbitration action to reject arbitrators on the ground of potential bias).
In case that is not enough, many employment contracts include class action waivers. This are contract provisions that: 1) require employees to agree to refrain from filing class action lawsuits; 2) require them to, instead, handle legal matters by way of arbitration; and 3) require employees to handle such matter via arbitration on an individual basis, i.e., not with other employees.
Companies that have class action waiver provisions in their employment contracts have argued that there are benefits to requiring employees to bring claims individually: “Claims are better settled on a case-by-case basis, thereby, resulting in quicker and more efficient decisions,” as noted by NPR.
The flipside, which has been argued by no small number of workers' rights advocates, is that by requiring employees to make their cases in individual arbitrations, “the process often isolates workers from each other, when they most need the resources and information-sharing so crucial to establishing patterns of misconduct.”
Companies’ large-scale reliance on quiet arbitrations, including the usage of class action waivers (the legality of the latter is being decided by the Supreme Court as we speak), has enabled sexual harassment to become institutionalized in corporate culture, according to lawmakers and researchers, alike.
As for exactly how common arbitration clauses and class action waivers are in fashion, that is difficult to pin-point. However, it is absolutely worth noting that no shortage of industry cases – ranging from those filed against Nasty Gal for gender and pregnancy discrimination and Forever 21 for transgender discrimination to American Apparel and its founder Dov Charney for sexual harassment, just to name a few – have been dealt with by way of mandatory arbitration. These cases are likely representative of a much larger number pool of cases and a truly expansive number of fashion brands, publications, and other industry companies, such as PR firms and model management companies, that make use of such provisions.
So, if you really want to affect change (and I mean actual change), it will take more than a t-shirt, and require, among other things, removal of arbitration clauses and class action waivers from employment contracts. Now. And while we are at it, instead of selling products declaring the need for gender equality, let's pay women at the same rate as men for the same work.