General counsels embrace role in diversity as NRF holds first Retail Law Summit

Topics included ethics, ecommerce, privacy and ESG issues
J. Craig Shearman
NRF Contributor

General counsels in the retail industry are well-positioned to lead diversity and inclusion efforts not just within their own departments but more broadly throughout their companies as well.

That was one of the key messages at NRF’s inaugural Retail Law Summit this week as scores of in-house lawyers from some of the nation’s most prominent retail brands gathered virtually to discuss issues from diversity opportunities to antitrust challenges.

The two-day virtual conference addressed not just legal issues facing the industry but the growing responsibilities and leadership role of the general counsel as a member of retail C-suites. Participants heard from both fellow retail company attorneys and retail practice experts at some of the nation’s leading law firms.

The summit covered both public policy issues and hands-on legal issues in sessions that qualified for continuing legal education credits, subject to approval by jurisdictions. Topics included ethics, ecommerce, employment law, real estate, privacy, and environmental/social/corporate governance issues. Recordings will be available to participants for 30 days.

Retail Law Summit 2022

Did you miss the NRF Retail Law Summit? Attend the next one this January!

Raising awareness

Keynote sessions included a panel discussion on “Diversity in Law: Sponsoring and Supporting People and Opportunities” moderated by CNN Legal Analyst Elliot Williams and a “fireside chat” between NRF Chief Administrative Officer and General Counsel Stephanie Martz and Associate Attorney General Vanita Gupta, the third-ranking official at the Department of Justice.

Target Executive Vice President and Chief Legal and Risk Officer Don Liu, who manages 500 corporate headquarters workers in legal, government affairs, compliance and loss prevention roles, highlighted the broad responsibility of top legal executives during the diversity discussion.

“I think general counsels should do more for a company than just lead diversity in their own teams,” Liu said. “There are things general counsels can do beyond their immediate spheres of influence to be able to help the company with diversity.”

Macy’s Inc. Chief Legal Officer Elisa Garcia said she began pushing for diversity more than a decade ago while at Office Depot by encouraging outside law firms to assign more women and minority attorneys to work done for the company. In the legal department at Macy’s, she has done the same and also established diversity objectives for staff that have since led to similar objectives across the company as part of the retailer’s robust diversity and inclusion program.

Albertsons Companies Executive Vice President and General Counsel Juliette Pryor said she has served as general counsel at businesses where she was ahead of the rest of the company on diversity and inclusion and others where she and the company were in tandem. Steps like hiring more diverse legal staff or bringing in diverse outside counsel have “created great conversations” and raised awareness that led to similar moves by executives in other departments.

“It’s a heavier lift when you’re ahead of the organization,” Pryor said. Nonetheless, “There are ways where you can have that impact as general counsel whether you are helping lead the organization or aligned with where the organization is already headed.”

Successful efforts to expand diversity at Albertsons have included legal department summer internships for first-year law students from underrepresented groups to give them both work experience and networking contacts.

"It may not be obvious to our customers whether our corporate offices are or are not diverse, but it can be very evident to our front-line workers."

Juliette Pryor, EVP and General Counsel of Albertsons Companies

Providing the right opportunities

Liu, Garcia and Pryor all said diversity among store-level staff is vital to retailers being able to serve their customers, but all agreed that retail companies also need to have diversity at management and corporate levels.

“It may not be obvious to our customers whether our corporate offices are or are not diverse, but it can be very evident to our front-line workers,” Pryor said.

“It’s easy to hire people but it’s much harder to keep them happy,” Liu said. “Sometimes there’s an overemphasis on hiring to make that as diverse as possible. But if you have a leaky bucket and the talent leaks out the back door, it doesn’t do much good.” Providing diverse employees with job satisfaction and opportunities for advancement is key, he said.

At Macy’s, the “Mosaic” program pairs diverse colleagues with C-suite sponsors — not just mentors — who get to know them, track their progress and help them get promoted. At Target, a “reverse mentoring” program connects executive team members with diverse workers from lower ranks in the company so the executives can learn about their concerns and challenges.

Panel participants said hiring more remote workers during the pandemic has made it easier to find diverse candidates for companies not based in major cities. But it has created new challenges in being sure employees who have never met their colleagues feel like part of the team, and also the need to recognize that not all new hires have the space, furniture or computer equipment to set up proper in-home offices.

Taking action

During a session on ecommerce issues facing retailers, George Stevens, an associate at the law firm Vorys, Sater, Seymour and Pease, said retailers need to take proactive steps to be able to defend against lawsuits claiming their websites do not comply with the Americans with Disabilities Act. Even though the ADA does not explicitly cover websites, the number of lawsuits soared from 800 in 2017 to 2,250 by 2019.

“This is a booming area of litigation,” he said. “If you haven’t been sued already, you’re going to be.”

Retailers should review their websites to be sure they have the proper code to work with screen readers used by visually impaired shoppers, fix any problems, continue to monitor for problems, and include a statement on the website saying what has been done, what will continue to be done and how to report problems.

Stevens said clients who have taken those steps have seen fewer lawsuits than those who haven’t because plaintiffs’ attorneys bringing the suits are “looking for a quick hit” and will move on to other websites instead.

During a session on environmental, social and corporate governance issues, Target attorney Andrew Neuharth said investors who follow rankings and ratings put out by nonprofits are often more interested in the reports’ descriptions of what companies are doing than the rankings as such. Companies should look closely at what is said about them to correct or dispute factual errors, out-of-date information or differences of opinion.

Panel participants said many ESG initiatives can be cost savers as well as good public policy, especially in sustainability. Installing LED light bulbs, for example, can reduce a company’s carbon footprint while also lowering electricity bills.

“A lot of these things are about saving money, not just saving the planet,” Green Strategies Inc. President Roger Ballantine said.

“So much of this makes business sense beyond the obvious better-for-the-planet, better-for-your-people kind of sense,” Neuharth said. “You don’t have to pick one or the other.”

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