Yanowitz v. L’Oreal USA, Inc.
116 P.3d 1123 (Cal.2005).
- Yanowitz was a regional sales manager at L’Oreal. Her supervisor told her to fire a dark-skinned sales associate because he didn’t think she was attractive enough. As he walked past a young attractive blonde girl, he told Yanowitz, “God damn it, get me one that looks like that.”
- Yanowitz refused to carry out the order and repeatedly asked for adequate justification to fire her.
- The sales associate was one of the top sellers in her area.
- As a result of he refusal, she was subjected to heightened scrutiny and increasingly hostile adverse treatment that “undermined her relationship with the employees she supervised and caused severe emotional distress that led her to leave her position.”
- She then filed a claim for retaliation under the Fair Employment and Housing Act (FEHA).
- Yanowitz’s performance was always great and she was even awarded regional sales manager of the year.
(1) Whether an employee’s refusal to follow a supervisor’s order that the employee reasonably believes to be discriminatory constitutes “protected activity” under the FEHA for which the employee may not properly be subjected to retaliation.
(2) When the employee objects to the supervisor’s order, does the employee need to explicitly tell the supervisor or the employer that she believes the order violates the FEHA or is otherwise discriminatory?
- A retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited.
- The theory behind this is that employees are generally legally unsophisticated, and if they could be fired for incorrect but reasonable beliefs, it would deter them from opposing such conduct.
- Here, Yanowitz presented evidence that she reasonably believed that Wiswall’s order constituted unlawful sex discrimination:
- She thought the order represented the application of a different standard for female sales associates than for male sales associates.
- She had hired and supervised both male and female sales associates for a number of years, and never had been asked to fire a male sales associate because he was not sufficiently attractive.
Rule: A retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited.
- Note, however, that the employer must, in light of all the circumstances, know that the employee believes the order to be discriminatory, even when the employee does not explicitly state to her supervisor or employer that she believes the order to be discriminatory.