The fashion industry is, perhaps more than most, built on image. Brands implore us, through their use of cultural cues, models, product, and studies and guesses about what's now or next or what's best kept preserved as classic or chic, to accept as ours the identity they project. Building these images, however, sometimes clashes with, or is perceived to clash with, societal norms and anti-bias laws.

Discrimination laws are not the only challenges facing fashion retailers, but the need to build and project a particular image accounts for many of the employment law problems unique to the industry. Beyond the issue of employment, ugly claims of racial profiling or exclusion surface from time to time, where a retailer is accused of harassing minority shoppers on the theory that they are in the store not to shop, but to shoplift.

Fashion is one of the most diverse industries in the modern world. Everyone gets dressed in the morning, and almost everyone, regardless of race, creed, color, sexual orientation, and so forth, is interested in how they look. Walk into almost any house of high couture and you will see employees of color, gay and straight, male and female.

Claims of unfair treatment of employees or shoppers can cause tremendous brand damage, whether or not the allegations are truthful. Fashion consumers, as well as employees, identify with the brand in a personal way. Shoppers may avoid a brand they perceive as unfair to a group or class of employees, and claims like this can hinder recruitment and retention of employees.

Of course, employers in every industry are challenged to consider their brand image, and that of their employees and sales force, and how they reflect their brands. Historically, in entertainment, sports, and even the traditional workforce, minorities have claimed that they have been excluded, in the name of customer preference or just plain bias, from certain positions.

But the fashion industry may be uniquely vulnerable. How can a brand embrace a particular image without seeming to reject another?

For high fashion, attention to fairness in hiring and treating customers must take high priority. Fashion companies must head off any such claims before they are raised. First, of course, the message must come from the top that diversity is part and indeed essential to the brand. This must be reflected in fair and unbiased hiring and promotion practices, and made clear in external and internal messaging, including internal policies, training, advertising and online marketing.

Managers who send a message that they do not welcome minority shoppers may have a devastating effect on employee morale as well as the public's perception of the brand as welcoming or something less than that. All employees must understand that the company will not tolerate discrimination against any minority group.

No Sitting Rules

Certain aspects of the retail environment, and the operation of the sales floor in high fashion, lend themselves to claims of bias. Brands expect their employees to project the brand's image while doing their jobs. Not only must employees look good—they must, by their dress and demeanor, demonstrate the persona of the brand.

Claims of disability discrimination have often been directed at luxury retailers. Fashion companies, like all others, must reasonably accommodate employees with disabilities—those who require leaves of absence that may prove burdensome to a schedule, particularly during high season; those whose disability affects their appearance, whether because of a pre-existing condition or because they suffer injuries or as a result of surgery; and those who may, as a result of a disability, communicate differently from other, non-disabled employees.

One particularly visible issue that has arisen in recent years has been challenges to employers' requirements that their employees remain standing while working. This issue, and the way the courts have dealt with it, is illustrative of the problems facing fashion retailers—many of whose employees are required to directly interact with customers all day long.

To best meet customer needs, most high-fashion retailers expect sales employees to be dynamic and energetic when greeting and working with customers in the store. Based on that expectation, they ask that sales associates, when scheduled to work on the sales floor, be standing and ready to move around the floor to welcome and assist customers with their selections and purchases and to otherwise be active in merchandising and monitoring the floor.

Of course, sales duties usually require that employees retrieve merchandise that may be located low or high, or in various places in the store—the employee may even need to go to a stock room to retrieve inventory.

Thus, while of course employees may sit while they are on break, or request a break to sit down when they must, sales staff are generally expected to be standing—both when shoppers enter the store and while they are doing their shopping.

No-sitting rules have been challenged on several grounds—principally by employees who claim to be disabled and that the rules constitute unlawful discrimination or a failure to accommodate a disability.

The Americans With Disabilities Act (ADA) requires employers to enter into an interactive process with employees who present themselves as disabled and who state that they are unable to stand. The purpose of the interactive process is to determine how the employer may reasonably accommodate the employee and permit them to accomplish the job's essential functions.

A hard and fast rule mandating that sales employees must always stand—even when customers are in the store—may not pass muster in every case. Depending on the particular layout of the store and the job duties, there may be ways to accommodate a disabled employee. The employer's preference that, even in a luxury environment, the employee must present a certain image and that an ability to stand is inconsistent with that image, may not be enough.

The standards are even tougher for retailers in New York City. The courts have held that, in contrast to the ADA, under the NYC Human Rights Law, there is no requested accommodation that is per se unreasonable. The burden of proving that a requested accommodation would pose an undue hardship rests squarely on the employer. Further, it is the employer's burden, under the NYC law, to prove as an affirmative defense that the employee could not perform the essential requisites of her job with a reasonable accommodation—that is, that the employee could not do her job well if she were seated.

Under the federal and state law, however, the employee bears the burden of proving that she is able to do her job even if she were permitted to remain seated.

A disability under the NYC law is defined broadly to include "any physical, medical, mental or psychological impairment, or a history or record of such impairment," that an employer must accommodate if the "disability is known or should have been known" to the employer. That accommodation obligation includes a potentially lengthy interactive process and careful consideration of every employee-requested accommodation unless the employer is confident it can prove that any accommodation would have created an undue hardship or would have been ineffective.

California: Special Case

Even outside the question of disability discrimination, California employers face special challenges when imposing a requirement that employees remain standing. A California wage order requires that an employer provide suitable seating for employees "when the nature of the work reasonably permits the use of seats." Cal. Code Regs., tit. 8, §§11040, subd. 14(A) (Wage Order No. 4-2001), 11070, subd. 14(A) (Wage Order No. 7-2001).

In California, an employer must provide an employee with a seat if the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing. Kilby v. CVS Pharmacy, 368 P.3d 554 (2016).

The issue of whether the nature of the work reasonably permits sitting is a question to be determined objectively based on the totality of the circumstances. An employer's business judgment and the physical layout of the workplace are relevant but not dispositive factors in making that determination.

The inquiry focuses on the nature of the work, not an individual employee's characteristics. Regardless of the nature of the work, if the employer argues there is no suitable seat available, the burden is on the employer to prove unavailability.

Nevertheless, California law recognizes that the employer has the right to define the duties to be performed by an employee, and that providing a certain level of customer service is an objective job duty that an employer may reasonably expect. Nevertheless, business judgment in this sense does not encompass an employer's mere preference that particular tasks be performed while standing. The standard is an objective one.

This objective determination, under California law, is necessary to protect employees against arbitrary determinations of the employer.

Conclusion

Fashion employers may use their judgment in hiring and firing, and in subjecting their employees to particular work rules. But one must expect that these judgments will continue to be challenged by applicants, employees, and even the public, if they are considered arbitrary or unfair.

Retailers in high fashion must balance their genuine interests in building a brand culture with the requirements of labor and employment law. Practices that seem to make business sense, but which result in depriving groups of individuals from employment, should be reviewed with counsel to be sure that they do not unnecessarily expose the company to liability and the brand to unneeded damage.

Read full article here: http://www.newyorklawjournal.com/id=1202796334417

Philip M. Berkowitz is a shareholder of Littler Mendelson and co-chair of the firm's U.S. international employment law and financial services practices. Reprinted with permission from the August 28, 2017 edition of the New York Law Journal^© 2017 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 - reprints@alm.com.