Evening bags that read “Pussy Power” hit the runway during one of the first big-name womenswear shows of the Fall/Winter 2018 season. “New York fashion shows to highlight #MeToo movement,” read a headline from Reuters. Right around the same time, Rebecca Minkoff released, in lieu of a fashion show, a collection of feminist-focused garments; the release was rather timed perfectly with the 2018 Women’s March. And not to be forgotten: the various feminist-inspired statement tees that Dior has been trotting down the runway in recent seasons. The brand’s $800 “We Should All Be Feminists” t-shirt comes to mind.
These might be noteworthy efforts in raising awareness about gender equality, but in many ways, they are not enough. If the fashion industry is truly serious about change (and not merely relying on women’s rights and gender equality/empowerment as the latest hot-selling trend, as many appear to be doing), there are concrete things it can do. For one thing, they could work to ensure that women that are doing the same jobs as men and that maintain the same general level of experience as those men are paid equally to their male counterparts. (In furtherance of this effort, brands should find ways to address that fact that in most workplaces, salary is generally treated as an off-limits topic, something that serves as a hinder equality/advancement, particularly for women).
Beyond that, brands can eradicate mandatory arbitration clauses for sexual harassment and discrimination claims from all employment contracts.
Arbitration & Class Action
Tangible action on these two fronts, which would occur on paper and for the most part, behind-the-scenes, is not nearly as flashy or Instagrammable (and thus, marketable and monetizable) as, say, a “Girl Power” t-shirt or a #MeToo-themed runway show. However, taking steps to ensure that women are not discriminated against in terms of pay and/or promotions (as Nike, Italian design house Etro, and i-D, Vice, and Garage magazine publisher Vice, for instance, have allegedly done for quite some time according to recent lawsuits), and to safeguard their right to have access to the legal system so that harassment and discrimination claims may be adjudicated in a public forum, are much more meaningful endeavors than over-priced designer wares.
Putting aside the rampant gender-based inequality in pay and promotional standards, and the striking inequality at the helm of major houses, in the C-suite, and on executive and advisory boards that is prevalent in fashion, consider an immensely important but rarely-discussed issue that should be at the center of fashion’s efforts to address the role of women in the industry: how most companies handle women’s claims of sexual harassment and discrimination. As we previously noted, a significant reason why sexual harassment continues to permeate workplaces, including fashion ones, stems from how these claims of wrongdoing are handled procedurally. No small number of companies require individuals, as a condition of their employment, to sign contracts that contain mandatory arbitration clauses, thereby stipulating that the employee will be required to resolve a dispute with his/her employer, including charges of sexual harassment, through arbitration and not before a court of law.
(It is worth noting that in 2018, New York prohibited employers from requiring employees to arbitrate sexual harassment claims. As Seyfarth Shaw LLP’s Robert Whitman and John Phillips have since stated, “The state amended the law in 2019 to prohibit mandatory arbitration agreements for all discrimination claims, [and] the statute is being challenged on preemption grounds in several lawsuits.” Most recently, they note that a federal district court held in February 2021 that the statute is preempted.” At the same time, New Jersey amended its anti-discrimination statute in 2019 to void “any provision in any employment contract that waives any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment,” as against public policy.)
As a practice, arbitration differs from traditional litigation in a myriad of ways. Arbitration proceedings, for instance, are private (meaning that third parties cannot attend arbitral conferences and hearings, and the filings are not made public), and in some cases, the proceedings are completely confidential, thereby obscuring information even about the existence of the proceedings from the uninvolved parties. And 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, further obscuring any information about them.
Additional considerations abound, including what legal and employment experts have argued 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 employer to resolve a dispute, and therefore, 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 those 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. (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 by way of 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.”
Large-scale reliance by many companies on quiet arbitrations, including the usage of class action waivers – which the Supreme Court deemed valid in a 5–4 decision in May 2018 – has enabled sexual harassment to become institutionalized in corporate culture, according to lawmakers and researchers, alike. (In a decision authored by Justice Gorsuch, the Supreme Court held in Epic Sys. Corp. v. Lewis that under the Federal Arbitration Act, employers may enforce arbitration agreements in employment contracts that provide for individualized arbitration proceedings).
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 several years ago against Nasty Gal for gender and pregnancy discrimination and Forever 21 for transgender discrimination to the more recent sexual harassment case that LVMH Litigation Counsel and Vice President of Legal Affairs Andowah Newton filed against the luxury goods conglomerate – have been dealt with by way of mandatory arbitration. (The Newton v. LVMH case is currently underway, with the parties clashing over whether it should be handled via 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 fashion industry participants really want to affect change, it will take more than t-shirts and feminism-inspired runway shows, and will require, among other things, removal of arbitration clauses and class action waivers from employment contracts. And while we are at it, instead of selling products declaring the need for gender equality, let’s make efforts to ensure that women are paid the same rate as men for the same work.
*This article was initially published on February 9, 2018, and has been updated to reflect the outcome of the Epic Sys. Corp. v. Lewis case and New York state’s efforts on the mandatory arbitration front.
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