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August 11, 2005
Fire that one and get "somebody hot"
Elysa Yanowitz claimed she suffered retaliation because she refused a manager's order to fire a female subordinate the manager viewed as not sufficiently sexually attractive or "hot." She claimed a violation of the retaliation provision of the state Fair Employment and Housing Act (FEHA). The trial court granted summary judgment for the employer; the Court of Appeal reversed; the California Supreme Court affirmed the Court of Appeal's judgment. Yanowitz v. L'Oreal USA (California 08/11/2005).
The allegations were: Yanowitz was the employer's regional sales manager. The general manager of her division instructed her to discharge a dark-skinned female because he did not find the woman sufficiently sexually attractive, and said to get "somebody hot" or words to that effect. Yanowitz asked for an adequate justification. Several times the manager asked if the woman had been dismissed and Yanowitz asked for an adequate justification. Yanowitz did not carry out the order, did not complain to her immediate supervisor or to human resources, and did not explicitly tell the manager she believed his order was discriminatory.
- (1) The court held that an employees' refusal to follow an order that the employee reasonably believes to be discriminatory is "protected activity" under the FEHA when the employee objects to the order but does not explicitly say that she believes the order violates the FEHA. Yanowitz believed the order was unlawful sex discrimination because she thought the order represented application of different standards for females than for males. Even though Yanowitz never told anyone she was refusing to obey the order because she thought it would violate the FEHA, the trier of fact could conclude that the manager knew Yanowitz was objecting repeatedly because she believed the order was discriminatory. Two judges DISSENTED on this point, saying that in order to be a whistleblower "one must blow the whistle - not in any technical way, but in some way. Plaintiff did not do so." The dissenters also saw no causal link between protected activity and adverse employment actions because the employer did not know about the protected activity.
- (2) When deciding whether there has been an "adverse employment action" in a retaliation case, there must be an impact on "terms, conditions, or privileges of employment" - interpreted liberally. Further, one must look "collectively" at a series of individual sanctions or punitive measures rather than taking them one-at-a-time. Here Yanowitz has alleged a pattern of systematic retaliation (e.g., negative evaluations, refusal to allow a response to criticism, unwarranted criticism in front of other employees, soliciting negative feedback from Yanowitz's staff).
- (3) An employee may use the continuing violations doctrine to rely upon allegedly retaliatory actions that occurred outside the limitations period when such acts are related to acts that occur within the limitations period. To the extent this policy deviates from the US Supreme Court's analysis of federal law (Natl RR Passenger Corp v. Morgan, 536 US 101 (2002)), the court declined to adopt its reasoning.
My view: This case will make it much easier for employee plaintiffs to prove retaliation for opposing practices that they believe are unlawful. The "opposition" here would be simple insubordination if the employer did not know the reason for Yanowitz's refusal to follow orders, and the evidence that the employer knew was pretty slim (even though the court holds that it was enough to go to the jury).
Posted August 11, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
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