Gender diversity in the C-suite was on the rise in 2020, with female representation among incoming chief executive officers in the fashion industry up by almost 100 percent. “More than 100 individuals were hired for CEO roles overall in the [apparel] industry during 2020,” according to a report from Madrid-based data research firm Nextail. The newly-released “Fashion’s Newest CEOs” report documents “major fashion retail CEO appointments,” primarily by companies in Europe and the United States, as companies took action “to prepare themselves for a more digital, sustainable, and diverse future based on their choices in leadership,” despite a larger sense of “risk aversion provoked by the pandemic.”

“Despite a year of unprecedented disruption, the fashion industry saw more than 100 CEO changes,” with some companies replaced long-standing brand founders or family members after decades of leadership, while others created the CEO role where it did not exist before.” Among some of the “noteworthy” cases, Nextail notes in its report that “Coty, Kylie Beauty, and J. Crew all had multiple turnover situations in 2020,” while the likes of Tapestry and Outdoor Voices, suffered from instances of “scandal and internal turmoil,” referring to the Coach, Kate Spade, and Stuart Weitzman’s parent company Tapestry’s July 2020 revelation that chairman and CEO Jide Zeitlin would resign over allegations of “personal misconduct.” 

Meanwhile, athleticwear company Outdoor Voices’ founder Tyler Haney was allegedly forced out of her role as CEO in February. (Haney has since returned to the company as an active board member, as former J.Crew CEO Mickey Drexler, who joined Outdoor Voices as chairman of the board and investor, and interim CEO Cliff Moskowitz announced they would leave).

At the same time, Nextail highlighted appointments by major fashion retailers, such as H&M, which hired Helena Helmersson as the first non-family member CEO of Stockholm-based apparel group, and Gap, Inc., which tapped Sonia Syngal as president and CEO in March 2020. And in retail more generally, Nextail notes that Lauren Hobert became the first female CEO of a major sporting goods retailer upon her appointment as CEO of Dick’s Sporting Goods.

Within the fashion space, specifically, Nextail found that ready-to-wear companies brought in the most new CEOs (a total of 24.5 percent of CEO changes for the year), followed by footwear, fast fashion, and jewelry/accessories companies, which each represented 13.7 percent of the C-level changes. Meanwhile, department stores and e-commerce marketplaces – including MatchesFashion, Zappos, and Printemps, among others – were included on the list this year, making up 7.8 percent of CEO changes measured. 

Looking into the reasons behind the 95.1 percent growth in female CEO representation compared with their predecessors, Nextail states that “in addition to the significant business case for diversity and inclusion, and gender parity, such growth reflects an industry aligning itself with a reality in which 80 percent of students at leading fashion schools and 75 percent of employees at apparel stores are women.” Looking forward, the research firm states that “female fashion leadership is likely to continue growing as companies ramp up their long-term diversity and inclusion initiatives post-crisis.” 

In terms of what companies are looking for when it comes to the CEO role, Nextail states that there are “underlying signs that fashion companies are still advancing on long-term gender parity, digitization, sustainability and goals.” Specifically, the company asserts that “if digital transformation was not on the priority list for fashion companies before the pandemic, it certainly will be in 2021 and beyond,” and hiring will reflect this, as will the fact that sustainability is “likely to become a standard on the CEO agenda.” Pointing a number of CEO appointments in 2020, including H&M’s hiring of Helena Helmersson, whose “vision to improve the sustainability of the fast-fashion group” was a notable aspect of her appeal as a leader, Nextail states that “sustainability was also mentioned among the reasons for hiring a number of leaders in 2020.” 

Another anticipated trend in furtherance of companies’ quests to bring on the most seasoned executives in order “to lead them out of the current crisis,” Nextail expects that “fashion companies will continue hiring company outsiders for the role of CEO in the short-term or in cases when essential company priorities require skill sets not currently available within internal company profiles.” 

Similarly, the firm notes that while it anticipates that future hires will have fashion experience, “their expertise in other industries will also bring value.” For instance, as more retail companies turn to advanced technologies like artificial intelligence and automation for increasing supply chain and merchandising efficiencies, “they will require leaders who will buy into innovations related to data science, artificial intelligence, and more.” 

Ultimately, the report predicts that “female leadership will likely continue to increase, especially as more representation will naturally lead to more mentorship and sponsorship of other women.” 

A report from a Swedish newspaper has prompted Sweden’s Equality Ombudsman to initiate a probe into reported discrimination being carried out by H&M. Reuters reported on Wednesday that the country’s Equality Ombudsman – the government agency tasked with “combatting discrimination on grounds of sex, transgender identity or expression, ethnic origin, religion or other belief, disability, sexual orientation or age” – has confirmed that it is investigating the fast fashion giant after Swedish newspaper Aftonbladet published footage that appeared to show an H&M sales associate discriminating against a customer on the basis of race. 

Aftonbladet published a report in November that “included footage from a hidden camera depicting what the paper said showed a woman with a foreign background being denied an exchange of purchased items without a receipt,” according to Reuters. At the same time, “a Swedish-born reporter from the daily was allowed to do so.” Bloomberg further noted on Wednesday that Aftonbladet’s own investigation found that “about 10 former and current employees at H&M stores in Sweden said they were aware of instances in which ethnic consumers were put at a disadvantage when they tried to exchange goods.”

Bloomberg states that this is not the first time H&M has been accused of racial discrimination: “In August, the retailer suspended several employees after a hat sold at its stores was given an internal product name that contained a racist slur.”

The Equality Ombudsman revealed on Wednesday that after learning of the Aftonbladet’s report, it has “decided to initiate an inspection of H&M” in order to address “claims that the company treats people with an ethnic affiliation other than Swedish and disadvantages them, among other things, by demanding a receipt when changing goods in violation of the company’s policy.” 

“The purpose of the inspection is to clarify whether there has been a violation of the prohibition of discrimination for which the company is responsible,” the agency asserted. Meanwhile, a representative for H&M told Reuters in response to the Equality Ombudsman’s newly-launch probe, “It is a matter of course that all customers be treated equally and we take this type of accusations very seriously.” 

Reuters notes that the Equality Ombudsman “does not have the authority to impose sanctions,” but may file a formal discrimination case should it find that H&M has run afoul of Sweden’s Discrimination Act, which prohibits discrimination on the basis of or that “is associated with” the protected grounds, namely, sex, transgender identity or expression, ethnicity (specifically, “national or ethnic origin, skin colour or any similar circumstance”), religion or other belief, disability, sexual orientation or age. (It is worth noting that the European Convention on Human Rights also contains provisions whereby discrimination is prohibited, including on the basis of “sex, race, ethnic origin, religion or conviction, functional impairment, age or sexual orientation.”)

According to a 2017 “comparative analysis of non-discrimination law in Europe” from the European Commission, damages for violations of non-discrimination legislation in Sweden “generally range between EUR 1,700 and EUR 13,000, depending on the circumstances.”

Should a monetary penalty ultimately be levied on H&M in the matter at hand, it will follow from a recent “record breaking” sanction for the retailer. Stockholm-headquartered H&M Group, which generated $27.4 billion in revenue in 2019 across its various brands, including H&M, COS, & Other Stories, and Arket, among others, recently was slapped with a $41.5 million fine in connection with its pattern of illegally surveilling employees in Germany. 

According to an October decision from the Hamburg Data Protection Commission, the Swedish fast fashion behemoth was found to be monitoring several hundred employees at its service center in Nuremberg, with some of the employees being subject to extensive recording of information related to their private lives since at least 2014, all of which was uncovered in conjunction with a security breach that took place a year ago. 

“After absences, such as vacations and sick leave, [H&M’s] supervising team leaders conducted so-called ‘Welcome Back Talks’ with their employees,” according to the Hamburg Data Protection Commission’s decision, which was handed down on October 1. “After these talks, in many cases not only the employees’ concrete vacation experiences were recorded” by H&M’s senior staff, the Data Protection Commission stated, “but also symptoms of illness and diagnoses.”  

Given the seriousness of the offense, the fine – which is the highest penalty to be ordered in Germany under the GDPR since its implementation in May 2018, per Forbes, and the second highest in the whole of the European Union (Google was fined €50 million by French regulators in 2019) – “is adequate and effective to deter companies from violating the privacy of their employees,” according to Hamburg Commissioner for Data Protection Prof. Dr. Johannes Caspar. 

H&M’s formal response to the Equality Ombudsman’s probe is due on December 22.

People for the Ethical Treatment of Animals is threatening Louis Vuitton with a lawsuit over allegedly “false claims” that the company’s chairman and CEO made in an interview in September. According to a letter addressed to Louis Vuitton chairman and CEO Michael Burke on Monday, legal counsel for the animal rights group “demands” that Burke “immediately end [his] false representations that the animals used for Louis Vuitton products ‘are humanely farmed.’” Such comments amount to “fraud,” PETA Foundation deputy general counsel Jared Goodman asserts, citing a potential “consumer fraud action” against the luxury goods company as a result.

In the letter, which was seen by TFL on Monday, Goodman points to comments that Mr. Burke made in a September 19 interview with British publication, The Telegraph, in which he stated, “I can say 100 percent hand on heart our animals are humanely farmed.” PETA’s counsel claims that “this assurance to consumers” is without merit, as “there is no such thing as ‘humanely farmed’ animals, who are violently killed and skinned for Louis Vuitton products.” (PETA does not state in its letter whether a standard for “humane farming” exists, and if so, what that standard entails.)

Goodman continues on in the brief letter, stating, “As you no doubt know, PETA has exposed the cruelty of the exotic-skins industry, including within LVMH’s supply chain.” For instance, he cites “a PETA-affiliate exposé into Vietnam crocodile farms, [which] shows tens of thousands of crocodiles in small, concrete enclosures – some narrower than the length of their bodies. The investigator was told the animals were kept there for over a year.” 

PETA’s counsel asserts that Burke and the Louis Vuitton brand “can easily rectify this by removing all exotic skins from your offerings immediately, just as major designers, including Calvin Klein and Chanel, and retailers, such as Nordstrom and Selfridges, have already done.” He states that PETA hopes that Burke “will recognize your untenable position and, at the least, immediately cease making this and any other false claims to misrepresent the suffering inherent in your company’s supply chain.” 

This is hardly PETA’s first attack on Louis Vuitton, nor it is the group’s first threat of litigation. In early 2016, PETA announced that it had acquired a single share in Louis Vuitton’s parent company LVMH Moët Hennessy Louis Vuitton in furtherance of its quest to gain access to LVMH’s shareholder meetings to pressure the Paris-based luxury goods conglomerate to stop using alligator and crocodile skins in its products. 

A squabble erupted between the two entities when PETA claimed in the spring of 2017 that it was denied entrance to an LVMH shareholder meeting after announcing that one of its representatives planned to attend the meeting in order to inquire about LVMH’s reliance on Vietnam crocodile farms – including two that supplied skins to a tannery owned by LVMH – which were allegedly subjecting animals to an array of abuses, as well as its use (and alleged abuse) of ostrich skins for its pricey products. 

On the heels of the meeting, PETA alleged that its “representative was refused entrance to the main meeting room and denied the opportunity to ask board members a question about the company’s appalling use of exotic-animal skins.” While the exact rights of shareholders tend to vary by company and in accordance with the size and nature of each party’s stake, PETA argued that its acquisition of a single share in LVMH in January 2016 ensured it entrance to the Paris-based conglomerate’s annual shareholder meetings. After being excluded from the April 2017 meeting, PETA told TFL that it was exploring potential legal action. No formal litigation between PETA and LVMH has followed.  

Should PETA decide to initiate legal action against Louis Vuitton, it would not be the first plaintiff to file suit on the basis of allegedly misleading animal treatment claims. Although, it might be the first to do so in a fashion context.

Courts in the U.S. have been facing a growing number of filings over companies’ claims about their treatment of animals, namely in the context of food. As Sheppard Mullin’s Abby Meyer stated in August 2019, “A handful of class actions have been filed challenging label claims regarding the treatment of the animals.” In one such case, a class of plaintiffs filed suit against Pete and Gerry’s Organics, LLC and Nellie’s Free Range Eggs in March 2019, alleging that the defendants’ advertisements and product labels falsely represented that their eggs were sourced from humanely-treated hens.

The companies’ “product labels depicted open grass fields, a little girl holding a hen, and phrases including ‘they roam where they please,’” Meyer stated. “A website link further depicted hens in large grass fields and distinguished the defendants’ farms from typical hen farms.” The plaintiffs, who set forth claims of common law fraud and breach of express warranty, took issue with such representations, asserting that “contrary to the label claims, the defendants ‘cram[] and stuff[] hens … into sheds up to 20,000 at a time,’” thereby, misleading consumers by way of their allegedly false marketing messaging. 

Fast forward to May 2020 and the parties agreed to confidentially settle the case. However, a number of other, similar animal-specific cases – which have been filed largely on state consumer fraud grounds – are currently underway in various courts across the U.S., and are “consistent with the overall trend of attacking representations made on labels and in advertising,” per Meyer.

“In recent years, animal rights groups have focused their litigation efforts on companies that they perceive are popular with consumers and are delivering messages to consumers about positive animal welfare, environmental stewardship and the production of ethically-sourced products,” according to Duane Morris’ Michelle C. Pardo. “Animal rights groups view this type of labeling and marketing as a threat to their mission. If consumers feel good about the products that they buy, they are less likely to abandon meat, dairy and other products” – including exotic-skinned luxury handbags – “that are eschewed by many animal rights activists.”

A rep for Louis Vuitton was not immediately available for comment. 

In the spring of 2017, the French government published a new law directly aimed at the fashion industry. Following years of back and forth between legislators and industry entities in France, and on the heels of governments and/or trade organizations in India, Israel, Italy and Spain introducing measures to address health and wellness in the fashion industry and beyond, French legislators revealed that they would require models to possess a medical certificate confirming that they are in good physical health (i.e., they are not “too skinny”) in order to legally work in France. 

Specifically, the law – which was formally published in May 2017, after first being introduced two years prior with a number of amendments implemented in the interim – aims to “avoid the promotion of beauty ideals that are inaccessible and to prevent anorexia in young people,” according to France’s Minister of Social Affairs and Health Marisol Touraine. In furtherance of that goal, the legislation requires that models undergo a medical examination every two years in order to get their hands on a medical certificate attesting to their good health.

According to the law, doctors may take a model’s body mass index (“BMI”) – which is calculated by dividing their weight by the square of their height – and the World Health Organization’s consideration that a person is underweight if their BMI is below 18.5 into account when making such a health assessment, something that has been met with notable backlash from industry entities due to the potential inaccuracy of the metric in gauging an individual’s overall health. 

Now, more than three years after the “model law” first went into effect, recent discussions within the fashion industry raise questions about what – if anything – has changed since then. In September, for instance, stylist Francesca Burns sparked an industry-wide discussion when she posted an image of a model that could not zip the sample-size Celine trousers she was wearing. 

In the since-gone-viral Instagram post, Burns stated that the Hedi Slimane-designed trousers did not fit the model, despite the model being “TINY … a size UK8 at the most.” Burns said that while “had several looks from this collection, none of them fit” the model. The unnamed model “was not the exception – you are,” Burns asserted, addressing Celine and Slimane, the brand’s highly-respected creative head. “This is so unacceptable – it is fundamentally wrong to suggest that this is the norm. It isn’t.” 

In an interview with Vogue days later, Burns said that this was hardly a one-off scenario: “On probably nine out of 10 shoots I style there will be sample clothing [lent by fashion brands] that doesn’t fit the talent, especially if you’re working with actors or non-professional models. In many instances, the sample sizes are so small that they don’t even fit the professional models.” Moreover, she asserted, “In many instances, the sample sizes” – i.e., the ones commonly worn by models in brands’ runway shows – “are so small that they don’t even fit [many] professional models.” She noted that “in order to fit into ‘the sample,’ many professional models have to adhere to the same very slender body type” that dictates the runway “sizing that is used by many major fashion houses.” 

Burns’ Instagram post was met with widespread encouragement from models and other industry insiders, alike. Some pointed to the fact that the French model law is “staggeringly easy to work around.” Others questioned the level of precision that a health certificate that is valid for a period of two years actually entails. Ultimately, LVMH Moët Hennessy Louis Vuitton-owned Celine’s sizing, taken at face-value, is difficult to reconcile with the legally-binding mandate that France has in place to ensure that working models are not unhealthily-thin, and raises broader questions about how much of an impact the law has had over the past three years. 

While the French regulation gave the country’s Ministry of Social Affairs and Health the opportunity to “lay down clear, penal sanctions in the event of failure to comply with the obligation to provide a medical certificate,” according to Paris-based attorney Céline Bondard, it does not guarantee that such a law will, in fact, be enforced. And, in fact, Bondard says that she has not encountered any cases involving the law since it was enacted. 

Looking beyond the French law, enforcement of these model-centric laws has been relatively lax if Israel is any indication. In a June 2017 report, which was published more than four years after the Israeli government passed its own “modeling law” in order to address “the creation of low body image and the development of eating disorders in Israel,” the Knesset Research and Information Center found that little enforcement had taken place. 

For instance, the Center’s Renana Gutreich revealed in the report that Israel’s Ministry of Economy and Industry informed the Knesset Center that “no one in the Ministry was appointed to be in charge of the enforcement of the law,” and in fact, there was an active “dispute among the Ministries as to which of them ought to be responsible for the implementation of this law.” More than that, Gutreich stated that when asked for information about “the number of medical certificates regarding levels of BMI issued to models since the law came into force,” the Israeli Medical Association, four individual healthcare firms, and Tel Aviv-based modeling agency Yuli Group did not have “any information” on the subject. 

At the same time, in Spain, where a similar ban was enacted in 2006 – albeit on a private, non-governmental level by the Spanish Association of Fashion Designers trade association – to keep models with a BMI of less than 18 off of the runway, the results have been mixed. According to local media reports, “Nearly a third of models were banned from taking to the catwalk in the first year the rule was introduced.” Since then, however, the effectiveness of the ban has been questioned. Speaking anonymously shortly after the ban came into effect, a model told the Observer that when she walked in runway shows during Madrid Fashion Week, agencies were actively engaging in “loopholes,” giving underweight models “Spanx underwear to stuff with weights” when it was time to step on a scale. 

In terms of the effectiveness of such legislation going forward, there is a delicate balance in play. Due to the potential imprecision of the factors used to gauge models’ health, including the BMI metric, Bondard, for one, says that there is a “risk of discrimination against models deemed too thin when they are, in fact, fit to work.” While she notes that the fashion industry has a duty to protect the health of models, themselves, and of individuals more broadly by “fighting against stereotypes related to thinness and preventing behaviors that are harmful to health, especially among young people,” it is also important that such legislation – some of which comes with the potential for imprisonment and/or monetary penalties – not “unnecessarily stigmatize ‘naturally’ thin people.” 

The French law has not necessarily mastered this balance, but Bondard says that it is  “a useful French regulatory development in principle,” particularly given that it has been supplemented by voluntary charters adopted by certain private groups, namely, the September 2017 charter put forth by LVMH Moët Hennessy Louis Vuitton and Kering, which “go beyond the applicable legislation to frame concrete situations and unify practices.” 

That assumes, of course, that the two industry giants are, in fact, enforcing their own voluntary pact.

As for Burns, she says that things should be different, particularly since “modeling is work and a fashion shoot is a workplace.” She has implored fashion businesses – large and small – to address such “sizing issues,” in light of the fact that the industry and its occupants “have a huge part to play in the representation we see on the page and screen.”

Whole Foods is “attempt[ing] to strip from this case the obvious racial implications of having selectively banned ‘Black Lives Matter’ (‘BLM’) messaging from its workplace.” That is what a group of nearly 30 current and former Whole Foods employees assert in a new filing in the lawsuit that they initiated against the Amazon-owned grocery chain in a Massachusetts federal court in July for allegedly “disciplining employees” in stores across the U.S. “for wearing Black Lives Matter masks” during their shifts, while enabling other employees to wear garments and accessories that bear non-company-related messages in the past. 

In the motion to dismiss that it filed last month, Whole Foods argued that the plaintiffs’ racial discrimination and retaliation case should be tossed out, as they did not establish that it applied its dress code policy – which “nominally prohibits employees from wearing clothing with visible slogans, messages, logos, or advertising that are not company-related” – in a manner that violates Title VII of the Civil Rights Act of 1964, the U.S.federal law that protects employees against discrimination based on certain specified characteristics, such as race, national origin, sex, and religion.

Counsel for Whole Foods asserted that, among other things, the plaintiffs “fail to state a cognizable claim for relief” because Title VII “does not provide a platform for socially-conscious speech,” such as Black Lives Matter messaging. Instead, what the statute does prohibit is “discrimination against an employee on account of his or her race,” which is not what happened and “is not what the plaintiffs are alleging,” per Whole Foods. 

With that in mind, the plaintiffs acknowledge, according to Whole Foods, that its “dress code was uniformly enforced [against] both Black and non-Black employees” since Whole Foods did not make “any employment decisions based on the race of the employee wearing any particular clothing item,” presumably given that white employees were disciplined for wearing Black Lives Matter masks. 

Given that it enforced the policy against BLM mask-wearing employees regardless of race, the grocery giant asserts that the plaintiffs have failed to show that it has engaged in racial discrimination in violation of Title VII, and “thus, their discrimination claim fails as a matter of law.” 

In a response of their own dated August 28, the plaintiffs call foul on Whole Foods’ “attempt [to] reframe the case” in its motion to dismiss “as focused on whether maintaining a facially neutral dress code policy runs afoul of Title VII.” In reality, the plaintiffs argue that they “have not alleged that Whole Foods’ dress code on its face violates Title VII; rather, [they] have alleged that Whole Foods has selectively enforced the dress code to target and suppress BLM messaging in the workplace, thereby discriminating against its Black employees and employees of other races who associate with them and advocate for them, [which] is in violation of Title VII.” 

In other words, the plaintiffs allege that Whole Foods is “distinguishing between [various] dress-code violations” and only targeting those that are “based on race.” For example, they assert that “Whole Foods has distinguished between shows of support for LGBTQ+ employees, which it has deemed acceptable [in the past] even when such demonstrations violate the dress code, and shows of support for Black employees, which it has deemed worthy of progressive disciplinary action.”  

“This race-based selective enforcement of the dress code plainly constitutes a ‘racial situation in which the plaintiff[s] became involved’ that confers protected status on the plaintiffs,” they argue, “including non-Black employees who have banded together with Black coworkers to wear the BLM apparel in a show of support, under a theory of associational discrimination.” 

According to the plaintiffs, “Associational discrimination broadly protects ‘individuals who, though not members of a protected class, are ‘victims of discriminatory animus toward

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third persons with whom the individuals associate,” in which case “the race of Black employees is ‘imputed’ to non-Black employees who are advocating on behalf of and associating with Black employees through wearing the BLM gear – the donning of which indisputably introduces a ‘racial situation’ into the workplace.” 

Ultimately, they argue that such a “doctrine does protect employees advocating in the workplace on behalf of protected employees,” and applies here given that “Whole Foods is disciplining (and terminating) Black and non-Black employees alike based on race – specifically its intolerance of advocacy on behalf of Black workers, in contrast to its tolerance for advocacy on behalf of other groups and messages.”

With the foregoing in mind, the plaintiffs claim that they and other Whole Foods employees are currently being “forced to choose between escalating discipline and possible termination, and engaging in protected activity –  expressing support for Black employees and opposing what they reasonably believe is discrimination and retaliation – in their workplace.” As such, they assert that the court should deny Whole Foods’ motion to dismiss and allow the case to proceed. 

At the same time, they argue that they have “sufficiently stated Title VII discrimination and retaliation claims, and intend to renew their request for preliminary injunctive relief … in order to protect [their] right to protest discrimination in their workplace (and keep their jobs) and to stand up for Black Whole Foods employees, in solidarity with the greater BLM movement.” 

*The case is Suverino Frith et al v. Whole Foods Market Inc, 1:20-cv-11358 (D. Mass.).