California Supreme Court Issues Major Ruling On Workplace Harassment, Bars Retaliation Against Manager Who Refused To Fire ‘Unattractive’ Employee

In this case, a sales manager for a major cosmetics company claimed she was harassed and forced to leave employment after refusing to terminate a subordinate deemed “unattractive” by a male superior. The California Supreme Court held that the plaintiff’s conduct constituted “protected activity” for purposes of the anti-retaliation provisions of California’s Fair Employment and Housing Act (“FEHA”). The Court further held that an adverse action constitutes retaliatory behavior if it materially impacts the terms and conditions of employment. (Yanowitz v. L’Oreal, (—Cal.Rptr. 3d —, 2005 WL 1903591, Cal., Aug. 11, 2005))


Plaintiff Elysa J. Yanowitz was a regional sales manager for defendant L’Oreal USA, Inc. – a position she had held for nearly 18 years with consistently positive performance reviews, including being named the company’s 1996 regional sales manager of the year. She was directed by her male supervisor to terminate a cosmetics salesperson, who – in the expressed view of Yanowitz’ male supervisor – was not “sufficiently attractive” or “hot.” Yanowitz repeatedly asked her supervisor for “adequate justification” for the termination and when that justification was not given, Yanowitz refused to terminate the female sales associate.

When Yanowitz did not carry out the direction to terminate the sales associate, she was subjected to harassment by her supervisor and other top managers – including repeated, sometimes profane, verbal abuse, suddenly negative performance reviews and audits of her travel and expense claims. She required treatment for nervous anxiety and left the company on disability stress leave in 1998, at the age of 53. She filed a discrimination charge with the California Department of Employment and Housing (DFEH) and filed suit in Superior Court in 1999. In a pre-trial ruling, the trial court found in favor of L’Oreal, ruling that Yanowitz had not engaged in any “protected activity” under FEHA because she had not complained about the discriminatory treatment while employed by the company.

Supreme Court Decision

The California Supreme Court held that in order for a plaintiff to establish that she engaged in activity protected by FEHA’s anti-retaliation provisions, she need only show that she was opposing a practice by the employer she reasonably and in good faith believed to be discriminatory. It is not necessary for the employee to demonstrate the alleged employment practice she opposed was, in fact, discriminatory.

In addition, the court held that an employee sufficiently communicates her opposition to a practice she reasonably and in good faith believes to be discriminatory “when, in light of all the circumstances the employer knows the employee believes the order to be discriminatory, even when the employee does not explicitly state to her supervisor or employer she believes the order to be discriminatory.” Here, the plaintiff’s repeated requests for “adequate justification” for the termination of the female sales associate was sufficient to put L’Oreal on notice plaintiff believed the termination was discriminatory.

Finally, the court held that “the proper standard for defining an adverse (retaliatory) employment action is the “materiality” test, a standard that requires an employer’s adverse action to materially affect the terms and conditions of employment.” The court rejected the arguably broader “deterrence test,” a test that focuses on whether the allegedly adverse action would have the affect of deferring protected activity in the future.

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