Refusal To Terminate An Employee Based On Her Looks Supports Retaliation Claim Under California Law
On August 11, 2005, the California Supreme Court ruled that an employee could state a claim for retaliation under the Fair Employment Housing Act (“FEHA”) based on the employee’s refusal to comply with a supervisor’s order that she fire a subordinate for allegedly being unattractive. Yanowitz v. L’Oreal USA, Inc., 32 Cal. Rptr.3d 436 (2005). In so ruling, the Court clarified the standard as to what constitutes protected opposition to unlawful conduct under the FEHA and resolved a conflict among lower courts about the definition of an “adverse employment action.”
The plaintiff, Yanowitz, was a Regional Sales Manager employed by L’Oreal USA, Inc., a national cosmetics and fragrance company. Yanowitz alleged that a male supervisor ordered her to terminate a female sales associate who, according to the male supervisor, was not “hot.” Yanowitz refused to comply with his order because she felt it was sex discrimination in that she had never been ordered to terminate an unattractive male employee. However, Yanowitz admitted that she never told her superior or anyone else at L’Oreal about her belief that the order was discriminatory.
Yanowitz claimed that, as a result of her refusal to terminate the employee, she was subjected to heightened scrutiny and increasingly hostile adverse treatment that undermined her relationship with her subordinates. This treatment included management soliciting negative information about Yanowitz from her subordinates and increased verbal and written criticism of her performance, including public criticism of her in front of her subordinates. Yanowitz eventually went on disability leave and L’Oreal replaced her.
The Court began its opinion by reaffirming the rule that an employee engages in a protected activity for purposes of the anti-retaliation provision of the FEHA not only when the employee opposes conduct that ultimately is determined to be unlawful but also when the employee opposes conduct that the employee “reasonably and in good faith” believes to be discriminatory, regardless of whether or not the challenged conduct is ultimately found to violate the FEHA. The fact that Yanowitz thought the order to terminate the employee represented an application of a different standard for female sales associates than for male sales associates, coupled with the fact that Yanowitz alleged she repeatedly requested that the supervisor provide an “adequate justification” for the order, was sufficient to meet this standard.
The employer argued that even if Yanowitz refused to follow the supervisor’s order because she reasonably believed it was discriminatory, she nonetheless failed to demonstrate that she had engaged in protected activity because she did not notify or advise the supervisor or any other superior that she was refusing to obey the order based on a belief that it violated FEHA. Yanowitz argued, and the Court agreed, that although she never explicitly told anyone that she believed the order was discriminatory, her repeated requests for an adequate justification and the nature of the order itself were sufficient to put the employer on notice that the employee believed she was opposing a discriminatory practice. The Court wrote: “we believe it is clear that an employee is not required to use legal terms or buzzwords when opposing discrimination. The court will find opposing activity if the employee’s comments, when read in their totality, oppose discrimination.”
L’Oreal also argued that the retaliatory conduct to which Yanowitz claimed to have been subjected — undue public criticism, heightened scrutiny of her performance, and undermining of her position — did not rise to the level of an “adverse employment action,” which is an essential element of any employment discrimination claim. Resolving a dispute among lower courts as to the definition of this element, the Court ruled that an adverse employment action is one that “materially” impacts an employee’s terms and conditions of employment. In so ruling, the Court rejected a broader standard adopted by the U.S. Court of Appeals for the Ninth Circuit and the Equal Employment Opportunity Commission that includes any action that is reasonably likely to deter an employee from engaging in protected activities. The Court wrote that mere offensive utterances or a pattern of social slights by the employer or co-worker cannot properly be viewed as materially affecting the terms and conditions of employment. Notably, however, the Court concluded that a “material impact” does not require that an employee suffer an economic detriment or a psychological injury. Rather, courts should look at the “entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” The Court further stated that the proper approach is to examine the totality of the employer’s actions to determine if they collectively have a material impact on the employee, as opposed to determining whether each action individually rises to that level. The Court went on to find that Yanowitz had alleged sufficient facts to satisfy this standard, reasoning that she did not claim mere “inconveniences or insignificant changes in job responsibilities”; rather, the conduct she attributed to L’Oreal “placed her career in jeopardy.”
This decision signals an expansion of an employee’s right to sue for retaliation under FEHA. As a result, employers should review their policies to ensure there are clear and adequate procedures in place for employees to raise complaints of discrimination and harassment in the workplace. Supervisors and managers also should understand that an employee is not required to use “magic words” in order to oppose what he or she believes is discriminatory behavior in the workplace and, therefore, management should take all potential complaints seriously. Lastly, employers should be mindful of the fact that performance reviews and comparable feedback may now, in certain circumstances, “materially impact” an employee’s job and, therefore, employers may want to institute review procedures before such feedback is made a part of an employee’s record.