Workplace Articles By BCC
Page 1 | Page 2 | Page 3 | Page 4 | Page 5 | Page 6
Background information on a third case involving retaliation, Yanowitz v. L’Oreal USA, Inc., Cal. LEXIS 8594, California Supreme Court, August 11, 2005 is excerpted from Long &Levit LLP, Employment Law Update, Douglas J. Melton. The CA Supreme Court recently decided an employee who “reasonably believes” a supervisor’s order is discriminatory and refuses to follow that order may claim retaliation for an “adverse employment action,” even if the order was perfectly legal. An employee need not explicitly state s/he is opposing unlawful discrimination to be protected from retaliation. As one dissenter said, this case “presents the question of whether a person can be a whistle blower without blowing the whistle.”
The case involved a Regional Sales Manager (Manager) for L’Oreal USA, Inc. The Manager had worked for L’Oreal for 24 years, her work was always “above expectations” and she was named Regional Sales Manager of the Year in 1997.The manager claimed her boss, the General Manager (GM), toured one of the stores and told the Manager she needed to fire an Associate because she was “not good looking enough” and the GM instructed the Manager to “get someone hot.” The Manager repeatedly asked for an adequate justification before she would fire the Associate (who was among the top sellers of men’s fragrances in the store). The Manager never received justification, and refused to comply with the order.
The GM then subjected the Manager to “heightened scrutiny and increasing hostile evaluations.” The alleged retaliation included:
- soliciting negative information about the Manager from her subordinates
- auditing the Manager’s travel and expense reports,
- public criticism of the Manager in the presence of subordinates and peers,
- calling a special meeting to criticize the Manager’s “dictatorial management” and criticizing her for being “too assertive,” and
- imposing new requirements on how the Manager supervised her sales territory.
The Manager went on disability leave for stress and never returned. She sued under the FEHA charging unlawful retaliation. The trial court granted summary judgment for L’Oreal and dismissed the case, finding the Manager had not engaged in protected activity. The Court of Appeal reversed, holding that a manager’s refusal to carry out an improper order is a protected activity, and an employer may not retaliate against her based on that refusal. The Supreme Court agreed.
In the opinion of the CA Supreme Court, as long as “the circumstances surrounding an employee’s conduct are sufficient to establish that an employer knew that an employee’s refusal to comply with an order was based on an employee’s reasonable belief that the order is discriminatory,” the “employee [need] not explicitly inform the employer that the order was discriminatory.” The Court adopted the “materiality test” previously used by some CA courts and by many federal courts under Title VII. Under the materiality test, an adverse employment action is one that “materially affects the terms and conditions of employment.”