Court Widens Protections for Workers Sensing Bias

The California Supreme Court on Thursday gave broad protections to workers who oppose orders that could be discriminatory, giving employees rights that legal experts said appear to go beyond those in any other state.

The ruling came in the case of a supervisor at a cosmetics and perfume company who resisted her boss’s order to fire a woman who was not “good-looking enough” and to replace her with someone “hot.”

The court ruled 4 to 2 that the supervisor could sue the company for allegedly retaliating against her with poor evaluations and new job requirements.

The ruling significantly expands protections for workers who refuse to follow orders they reasonably believe violate the state’s anti-discrimination laws. Workers will be protected from retaliation even if they do not explicitly complain about the alleged discrimination and even if the order was not in fact unlawful, the court said.

Former California Supreme Court Justice Joseph Grodin, who argued the appeal for the manager in the case, said the ruling was “probably unique among state courts.”

Grodin, now a law professor, said the decision sends a message to employers that “workers are allies in the battle against discrimination.”

William C. Quackenbush, an employment lawyer who was not involved in the case, said the decision “breaks new ground,” opening the door to a much higher number of complaints against employers. It also “reflects the reality that employees usually don’t complain about discrimination.”

“This just makes it much stronger for all California employees,” Quackenbush said. “You don’t have to go and complain and risk losing your job because you are a complainer” to be protected from retaliation.

George S. Howard, who represented an employers’ group in the case, said the law in California “already was a bonanza for plaintiff attorneys, and it just got a little easier.”

“This is just another decision that is going to make managing a workforce in California that much harder,” Howard said.

Cases claiming that a company retaliated against a worker already are among the most common types of employment litigation in the state, employment law experts said.

In the case before the court, Elysa J. Yanowitz, a regional sales manager for L’Oreal USA Inc., said her boss ordered her to fire a female sales associate with a strong performance record because the dark-skinned employee was not attractive enough.

The boss “expressed a preference for fair-skinned blonds” and directed Yanowitz to “[g]et me somebody hot,” or words to that effect, the court said.

Upon learning that Yanowitz had ignored his order, the boss reiterated that he wanted the associate terminated, the court said.

“He passed ‘a young attractive blond girl, very sexy,’ on his way out, turned to Yanowitz and told her, ‘Get me one that looks like that,’ ” the court wrote in its ruling.

After she again refused his request, the company retaliated by giving her bad evaluations and changing the requirements of her job, Yanowitz said. Citing stress, Yanowitz eventually left L’Oreal on a disability leave.

Yanowitz contended that her boss’s order was illegal sex discrimination because male sales associates were not required to be attractive.

The court refused to decide whether discrimination on the basis of looks was illegal under state law, a finding no California court has ever reached.

The court nevertheless agreed that an appearance standard that is applied to one gender and not the other is sex discrimination unless the different treatment can be justified as a legitimate occupational qualification.

“We believe it is clear that such unjustified disparate treatment

Justices Ming W. Chin and Marvin R. Baxter dissented, arguing that Yanowitz could not seek compensation for retaliation because she failed to complain that the order was discriminatory.

“This case thus presents the question of whether a person can be a whistle-blower without blowing the whistle,” Chin wrote. “At least in this case, where the personnel order was not clearly unlawful, I would say no.”

Yanowitz, 59, who worked for L’Oreal for more than 17 years, was gratified by Thursday’s ruling.

“I hope this case gives other managers the courage to do what is right for those who report to them,” the Northern California woman said.

A spokeswoman for L’Oreal refused to comment because the case is still pending. As a result of Thursday’s ruling, Yanowitz can return to Superior Court for a trial on her lawsuit.

The dispute within the court centered on whether L’Oreal should have known that Yanowitz was refusing to fire the employee because she believed the order was illegal.

The dissenting justices said the ruling places “the onus on employers to try to find out whether an employee believes an action is discriminatory and for some reason has chosen not to speak out.”

Yanowitz “never mentioned to anyone within the company that she felt the order was discriminatory,” Chin wrote.

But the majority said a jury could determine that L’Oreal knew of Yanowitz’s concerns because she repeatedly told her boss that she needed some justification for firing the associate.

The court said future cases would be decided on individual circumstances. But employees do not have to know whether a particular practice violates the law to be protected from firing for opposing it.

“A rule that would allow retaliation against an employee for opposing conduct the employee reasonably and in good faith believed was discriminatory” when the directive was in fact legal “would significantly discourage employees from opposing incidents of discrimination,” George said.

Yanowitz contended that unwarranted criticism and humiliation from the company amounted to illegal retaliation. Two days before she left the firm, she was given a new travel schedule that precisely regulated how often she should visit each market in her territory, she said.

The court majority agreed that a jury could decide that the actions were retaliation. Before she refused to fire the subordinate, Yanowitz was a “highly rated and honored” employee, the court noted.

“Months of unwarranted and public criticism of a previously honored employee, an implied threat of termination, contacts with subordinates that only could have the effect of undermining a manager’s effectiveness, and new regulation of the manner in which the manager oversaw her territory did more than inconvenience Yanowitz,” George wrote.

Such alleged actions “placed her career in jeopardy,” the chief justice said.

Quackenbush, who represents workers in employment litigation, said that even if an employee obeyed an order she thought was discriminatory, she could have a valid retaliation claim if her boss knew the order displeased her, he said.

“The court is saying that if you register your complaint in some fashion, and it can be pretty meek and mild, about what you believe is discrimination, whether or not it is, and then you get demoted or terminated, you win.”