Refusal to Terminate "Unattractive" Employee is Protected Activity Sufficient to Support Claim of Retaliation

July 1, 2003

By: Barbara L. McCully

In Yanowitz v. L'Oreal USA, Inc., 106 Cal.App.4th 1038 (2003), plaintiff was a female regional sales manager for defendant who for ten years consistently had received good performance reviews and had been named the regional sales manager of the year in 1996. The next year, while working in the company's designer fragrance division, the division merged with the Ralph Lauren fragrance division. Although some sales managers were laid off due to the merger, plaintiff was not.

Shortly after the merger, plaintiff and the male general manager for the new division toured the company's installation in the San Francisco Macy's store. The general manager told plaintiff to terminate a female sales associate in the store because she was not sufficiently attractive and that he wanted somebody who was "hot". Plaintiff refused to terminate the sales associate on the ground that she was not attractive enough and requested the general manger for an "adequate justification" for the proposed termination.

Although plaintiff thought that the general manager's order was discriminatory, she did not tell him that nor did she otherwise report the "unlawful order" to the human resources department.

Thereafter, plaintiff was subjected to a campaign orchestrated by the general manager and plaintiff's immediate supervisor to get plaintiff terminated. After a few months of the "campaign" plaintiff went out on disability leave due to stress and she was replaced when she did not return from leave.

Plaintiff sued for, among other things, retaliation under the Fair Employment and Housing Act ("FEHA"). The trial court granted defendant's motion for summary judgment on the grounds that (1) she was not engaged in a protected activity because physical appearance is not a "protected group" under the FEHA, (2) she failed to expressly complain about the alleged wrongful conduct, and (3) she did not suffer an adverse job action. The appellate court reversed.

While the appellate court agreed that physical appearance was not a "protected group" under FEHA, it found that defendant and the trial court had framed the wrong issue and that the proper issue was : "May a male executive insist that a female subordinate be terminated because she is not sexually appealing to him, when no similar orders are issued with respect to male employees?"

The court held such an order is unlawful and that its holding was in accord with many cases that found that employers may not insist that only attractive women be hired nor may they subject women to more burdensome appearance standards than men. Because plaintiff had submitted evidence that permitted an inference that defendant would not have ordered the sales associate to be fired if she had been male, the court found that plaintiff had presented evidence sufficient to support a finding that defendant had engaged in unlawful discrimination.

The appellate court also found that plaintiff's request of the general manager for an "appropriate" reason for the ordered termination was, in effect, a report to management of unlawful conduct. The court found that to hold otherwise, would be to put the burden on employees to "educate" management about the discriminatory conduct of its actions.

The court further found that, under the facts of the case, even if plaintiff had failed to "report" the matter to management, her failure would not have been fatal to her case. In this regard, the court found that where an employer directs an employee to engage in discriminatory conduct for which the employer offered no legitimate business purpose, the refusal to carry out a discriminatory order is protected whether or not the employee "explains" to the employer the unlawfulness of the conduct.

Finally, the appellate court rejected defendant's argument that plaintiff had not suffered an "adverse job action" in retaliation for her refusal to terminate the sales associate because she had not been terminated, demoted, or the like.

Quoting from federal cases, the Yanowitz court recognized that there are countervailing concerns in defining what constitutes an adverse job action:

In deciding the proper test to use in determining whether plaintiff suffered an "adverse job action", the appellate court rejected the "materiality" test utilized by other California courts, whereby conduct constitutes actionable retaliation only if it had a "substantial and material adverse effect on the terms and conditions of the plaintiff's employment." Instead, it adopted the "deterrence test" utilized by Ninth Circuit which provides that "an action is cognizable as an adverse employment action if it is reasonably likely to deter employees from engaging in protected activity."

Applying the facts to the "deterrence test", the court found that plaintiff had suffered an adverse job action in that she had been subjected to months of unwarranted criticism, defendant had engaged in a campaign to have her subordinates provide criticism of her, defendant's conduct was an implied threat of termination, and her latitude in deciding how to oversee her territory had been restricted, all of which would discourage a reasonable manager from disobeying future unlawful orders.