Yanowitz v. L'OREAL USA, INC.
36 Cal. 4th 1028, 32 Cal. Rptr. 3d 436, 116 P.3d 1123 (2005)
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Rule of Law:
An employee's refusal to obey an order they reasonably believe to be discriminatory constitutes protected opposition activity under FEHA, even if the employee does not explicitly state their belief, so long as the employer would reasonably understand the refusal was based on that belief. A series of retaliatory acts, viewed collectively, can constitute an adverse employment action if they materially affect the terms, conditions, or privileges of employment.
Facts:
- Elysa Yanowitz was a long-term, highly-rated regional sales manager for L'Oreal USA, Inc., and was named sales manager of the year for 1996.
- In the fall of 1997, a general manager, Jack Wiswall, ordered Yanowitz to terminate a dark-skinned female sales associate because he did not find her to be physically attractive or 'hot.'
- On a later visit, Wiswall reiterated his demand, pointed to a 'young attractive blonde girl,' and told Yanowitz, 'God damn it, get me one that looks like that.'
- Yanowitz refused to carry out the order and on several occasions asked Wiswall for an 'adequate justification' for the termination, which he never provided.
- Yanowitz never explicitly told Wiswall or anyone else at L'Oreal that she believed his order constituted unlawful sex discrimination.
- Following her refusal, Yanowitz's supervisors began soliciting negative feedback about her from her subordinates, subjected her to public criticism and humiliation, and issued unwarranted negative performance reviews.
- This pattern of conduct caused Yanowitz severe stress, for which she eventually took disability leave and did not return to her position.
Procedural Posture:
- Elysa Yanowitz filed a discrimination charge with the California Department of Fair Employment and Housing (DFEH).
- After receiving a right-to-sue letter, Yanowitz sued L'Oreal in superior court (trial court) for, among other things, retaliation under FEHA.
- The trial court granted L'Oreal's motion for summary judgment on the retaliation claim, finding Yanowitz had not engaged in protected activity.
- Yanowitz, as appellant, appealed the judgment to the Court of Appeal.
- The Court of Appeal reversed the summary judgment, finding that triable issues of fact existed as to whether Yanowitz had established a prima facie case of retaliation.
- L'Oreal, as petitioner, sought and was granted review by the Supreme Court of California.
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Issue:
Does an employer's course of conduct, including unwarranted criticism and undermining a manager's authority, constitute an actionable adverse employment action in retaliation for the manager's refusal to carry out an order she reasonably believed was discriminatory, even if she did not explicitly state her belief to the employer?
Opinions:
Majority - George, C. J.
Yes. An employee's refusal to carry out an order that she reasonably believes is discriminatory constitutes protected activity under FEHA, and an employer cannot retaliate on that basis. An employee need not use legal terms or 'magic words' to convey their opposition. When the circumstances are sufficient for an employer to know that the employee's refusal is based on a belief that the order is discriminatory, the employee's conduct is protected. Furthermore, retaliation can be established not just by ultimate employment actions like termination, but by a series of acts that, when viewed collectively under the totality of the circumstances, materially affect the terms, conditions, or privileges of employment. The court adopted a 'materiality' test for adverse actions and affirmed the use of the 'continuing violation' doctrine, allowing consideration of acts outside the statute of limitations if they are part of a continuous course of conduct.
Dissenting - Chin, J.
No. To receive protection against retaliation as a whistleblower, an employee must actually 'blow the whistle' by communicating their belief that a practice is discriminatory to the employer. Plaintiff's repeated requests for 'adequate justification' were too vague to put L'Oreal on notice that she was opposing sex discrimination, as the requests could have been based on business judgment or personal disagreement. An employer should not be required to decipher an employee's 'cloaked complaint of discrimination.' Because Yanowitz failed to communicate her belief, she did not engage in protected 'opposition' activity, and there is no causal link between her secret belief and the employer's subsequent actions.
Analysis:
This decision significantly shapes California's retaliation law by broadening the definition of 'protected activity' to include implicit opposition, so long as the employer could reasonably infer the employee's discriminatory concerns from the context. It formally adopts the 'materiality' standard for adverse employment actions but applies it broadly, establishing that a series of lesser, individually non-actionable events can collectively constitute an adverse action. The case also solidifies the 'continuing violation' doctrine for retaliation claims in California, diverging from a stricter federal standard and making it easier for plaintiffs to litigate claims based on a sustained pattern of conduct.
