Coming of Age in the Fashion Industry: Avoiding Age Discrimination Claims – Law Firm
Many fashion brands, such as Saint Laurent, Celine and Gucci, have taken a more inclusive approach to their advertising campaigns in recent years, featuring older models in the 70s and 80s.
But while age inclusion has been embraced for consumer marketing, it should also be a priority for fashion employers managing their workforces.
Complaints of age discrimination have generally been less frequent than complaints based on other characteristics protected by the Equality Act 2010, such as sex, race or disability. However, the recent claim of direct age discrimination filed by a 56-year-old former knitwear designer for Superdry has shone a spotlight on this area of employment law.
Below we highlight the three main areas of risk of age discrimination and offer advice on how to avoid potential pitfalls.
Whether you are recruiting through online advertising, social media, or print media, the content and tone of recruiting language should be neutral, positive, and inclusive.
A company targeting young people in the fashion market may find this challenging, but employers need to be on the lookout for unconscious (or conscious) biases towards younger candidates.
examples of direct age discrimination in recruitment, such as setting an upper age limit for job applicants or using overtly discriminatory language, e.g. “youth enthusiasm”, are rare in practice. However, indirect discrimination can be more difficult to spot at first sight. This would be relevant if certain aspects of a recruitment process applied to all applicants but negatively affected one age group over another.
For example, advertising that applicants have at least 15 years of experience designing men’s clothing potentially constitutes indirect discrimination. It would be impossible for people under a certain age to meet this experience requirement.
However, it could still be a legal requirement if the employer can justify it as a proportionate means of achieving a legitimate business objective, such as ensuring senior management has the necessary skills and experience.
Concretely, existing recruitment methods should be reviewed to ensure that jobs are accessible to candidates at all life stages and that advertisements and job descriptions do not contain language, images or requirements. problematic. Additionally, advertising through a variety of channels (rather than a social media platform for example) will open up a wider pool of talent.
When it comes to the interview process, the discussion should focus on objective information about skills, abilities and relevant experience, rather than personal information unrelated to the role.
- Employment policies and training
Strong equal opportunity and anti-harassment policies are the cornerstone of good employment practice when it comes to ensuring diversity and inclusion in the workplace.
These policies also set expectations for the behavior of fashion employees towards their colleagues, so it is important that they are regularly reviewed and updated.
However, policies hidden on the intranet offer little practical benefit to employers. The best way to reinforce the message of inclusivity and create a potential defense against complaints of employee discrimination (on any protected ground) is to provide regular and effective diversity training throughout the company. ‘company.
Despite the training, some employees may continue what they perceive as “bantering” with older or younger colleagues. Jurisprudence relating to age discrimination is replete with examples of stereotypical comments that employees are “determined in their ways”, less “agile” than their colleagues or “too demanding” in reference to millennials.
This should be overlooked by fashion employers, as it would harm an otherwise positive work culture and could also expose the company to liability for an age-related harassment claim under the Employment Act. equality. Behaviors that go beyond the limits must be subject to internal disciplinary procedures.
- Performance appraisal and promotion
Ideally, managers who lead performance appraisal processes and make promotion decisions should apply clear, objective performance criteria transparently and consistently across their team.
A detailed written record that supports their decision-making should also be kept. If an employee has not met the mark in terms of performance, feedback should be prompt and constructive, with a plan for improvement.
In the Superdry case, the employment tribunal ruled that the decision not to promote the employee to the post of chief designer and to assess her as a low “risk of flight” from the company was motivated by her age .
Regarding promotion opportunities, new roles should be available to all employees who meet the relevant criteria, regardless of age. Older employees should not be overlooked due to preconceptions that they are close to retirement or less willing to take on a new challenge.
The preferable approach is to consult with all employees about professional development opportunities and career aspirations.
Retirement conversations don’t have to be initiated by the employer, but future plans can be discussed if brought up by an employee. The goal is for employees to feel valued and for fashion employers to access the skills and industry experience that older star performers can still bring to the table.