This term, the California Supreme Court has taken an interest in employment cases dealing with retaliation. In its most recent decision, Yanowitz v. L'Oreal U.S.A, Inc., the Court held that an employee's refusal to comply with a supervisor's order, which the employee reasonably believed to be discriminatory, constitutes a protected activity under the Fair Employment and Housing Act ("FEHA") – and, thus, the employer's disciplining the employee constituted prohibited "retaliation." The Yanowitz Court also defined when an employee has suffered "adverse employment action," one of the prerequisites for bringing a discrimination or retaliation case. Notably, Yanowitz was the second retaliation decision in two months from the California Supreme Court (see Consensual affairs may create sexual harassment liability), a strong indication that retaliation claims may be getting more attention of late, both from the courts and from plaintiff's attorneys.
What Employers Need to Know
The Yanowitz decision emphasizes once again the need for employers to update their employment policies and training practices to include anti-harassment and anti-retaliation policies and procedures. All employers and managers should treat an employee complaints seriously, even if the complaint does not expressly concern unlawful conduct. Complaints should be investigated promptly and appropriate remedial steps should be taken. Additionally, employers should make sure to follow up after the complaint has been resolved, to ensure that the complaining employee does not suffer any adverse consequences in connection with her complaint.
The Facts of Yanowitz
Plaintiff Elysa Yanowitz was employed by L'Oreal as a regional sales manager, and supervised several sales associates. One of Yanowitz's supervisors, Jack Wiswall, instructed Yanowitz to terminate a dark-skinned female associate because he did not find the woman to be sufficiently physically attractive. Yanowitz refused to dismiss the associate – one of the top sales associates in the region – and repeatedly asked Wiswall for adequate justification. Wiswall never disclosed any reason for his order other than the associate's appearance.
Yanowitz alleged that as a result of her refusal to terminate the female associate, L'Oreal began a campaign of systematic retaliation and actively solicited negative information about her. L'Oreal implied threats of termination, undermined her managerial effectiveness, and imposed new requirements on how Yanowitz was to supervise her sales territory – all less than 18 months after Yanowitz had been named regional sales manager of the year. Yanowitz ultimately left the company due to stress, and sued for retaliation.
The Court's Rationale
The Court held that Yanowitz had sufficient evidence of retaliation to go to a jury. FEHA prohibits discrimination under California law, and also prohibits an employer from retaliating against an employee who opposes or complains of discriminatory conduct. The Court concluded that because Yanowitz reasonably believed the termination order to have been discriminatory (on the basis of the associate's sex), L'Oreal's alleged retaliation against Yanowitz for refusing to comply with that order constituted "opposing" or "protesting" the alleged discriminatory conduct. This was true, the Court said, even though Yanowitz never used the buzzword "discriminatory" in her objection to terminate the sales associate – so long as there was sufficient evidence that L'Oreal knew or should have known Yanowitz was protesting conduct she believed was unlawful. Because there was such evidence, the case was sent back for trial.
The Court also held that lower courts should apply the materiality test to determine what constitutes "adverse employment action" necessary to support a claim for discrimination or retaliation. Under this test, an employee suffers adverse employment action when the discriminatory or retaliatory conduct materially affects the employee's terms, conditions, and privileges of employment – a far broader standard than simply termination or demotion.
For more information about this new development, please contact your Bullivant employment attorney.