Court Cautions Employers About Policy of Firing Based on Physical Attractiveness

By Negin Iraninejadian

In 2005, the California Supreme Court’s decision in the case of Yanowitz v. L’Oreal U.S.A. Inc., broadened the scope of what may constitute evidence of retaliation under the Fair Employment and Housing Act (FEHA). Redefining what constitutes workplace harassment in California.

Plaintiff Elysa Yanowitz worked as a regional sales manager for Defendant L’Oreal since 1981.  Throughout Yanowitz’s employment with L’Oreal, she was given positive performance reviews, and even named as Regional Sales Manager of the Year. 

Sometime in 1997, Yanowitz was touring a department store with her General Manager, John Wiswall. He pointed to a dark-skinned female employee and instructed Plaintiff to terminate the employee because she was not sufficiently attractive.  Wiswall expressed a preference for fair-skinned blond female employees, and instructed Yanowitz to “get me somebody hot.”  On a return trip to the store, Wiswall again instructed Yanowitz to fire the employee and hire someone more attractive, despite the fact that the employee was a top performer. Yanowitz asked Wiswall for an adequate justification to fire the employee before she would do so. 

Upon learning that the employee was a top performer, Yanowitz refused to proceed with the termination. In response, the Vice President, Richard Roderick, and Wiswall began retaliating against her. They began soliciting negative information about Yanowitz from those she supervised.  Additionally, meetings were held to criticize her management style, to threaten termination and to subject her to screaming and belittling.  Her expense reports began being audited and a negative memorandum was sent to the Human Resources department, which criticized her for being “too assertive.”  The Defendants then set up a meeting with Yanowitz to discuss a negative memorandum written about her, without first reading her written response to the memo.  Two days after the meeting, Yanowitz went out on a disability leave and never returned to work.

In order to have a cause of action for retaliation under the FEHA, a Plaintiff must show: (1) he or she engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link existed between the protected activity and the adverse employment action.  One of the big issues the Yanowitz court discussed was whether the Yanowitz’s refusal to follow her employer’s instruction that she fire an employee who was not physically attractive, was protected activity.  The Court noted that under the FEHA, an employee can oppose an activity that he or she reasonably believes is discriminatory, even if it turns out that it is not in actuality a discriminatory action. 

Yanowitz presented evidence that she reasonably believed that Wiswall’s termination order was unlawful sex discrimination because she thought the order applied a different set of standards to male and female employees. The Court stated that there was sufficient evidence that the Defendant knew or should have known that Yanowitz believed that the conduct was discriminatory.

The Court also addressed the issue of whether the actions that Yanowitz was subjected to were sufficient to constitute the adverse employment action that is required for a retaliation claim under the FEHA.  The Court adopted what is called a “materiality standard” in determining what an adverse employment action is. Under this standard, the action taken against the employee must “materially affect the terms, conditions, or privileges of employment.”  The Court rejected a test that considers only actions such as hiring and firing to be retaliation and instead defined an adverse employment action as something that would deter employees from engaging in the protected activity.

Additionally, the Court held that in determining whether unlawful retaliation occurred, acts of retaliation that occurred outside of the statute of limitations could still be considered under a continuing violations theory.  Under the continuing violations doctrine, an employer can be liable for violations that take place after the limitations period has passed, if such actions are “sufficiently linked to unlawful conduct that occurred within the limitations period.”  The Court applied the doctrine in Yanowitz’s retaliation cause of action, allowing all acts of retaliation to be considered.

The impact of the Yanowitz decision is quite significant because it broadens the scope of retaliation claims for employees by making an employee’s reasonable belief that an action is unlawful, thus sufficient in helping to establish that the employee was engaged in a protected activity.  The case also broadens the definition of adverse employment action to go beyond ultimate employment decisions such as hiring and firing, and allows the employee to use evidence of retaliation that fall outside the limitations period, so long as such evidence is related to acts occurring within the limitations period.  

Carlin and Buchsbaum are employee rights lawyers in Long Beach, California. Our workplace discrimination lawyers specialize in employment law and discrimination in the workplace. Please contact your Carlin & Buchsbaum Long Beach workplace harassment attorney with any questions.

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