Employers are prohibited from retaliating against an employee who makes a good faith complaint of discrimination. While most employers know that "whistleblowers" are protected from retaliation, identifying a whistleblower may not be easy. Under a recent California Supreme Court decision, Yanowitz v. L’OrealUSA,Inc., a formal or explicit complaint need not be made in order for a company to be exposed to a retaliation claim. Simply asking for "adequate justification" and refusing to carrying out a supervisor’s requested termination of an employee is sufficient to constitute a complaint for which retaliation is illegal. Accordingly, it may be difficult to recognize when a complaint has been made or a discriminatory act refused.

Under California’s Fair Employment and Housing Act (FEHA), it is illegal for an employer to "discharge, expel or otherwise discriminate against any person because the person has opposed any practices forbidden by [FEHA]," such as discrimination. Gov’t Code section 12940(h) (emphasis added). The purpose behind protecting whistleblowers is to encourage complaints to prevent discrimination and allow employers to take prompt corrective action. The principal questions before the Supreme Court were:

  • Can an employee blow the whistle, thereby making her protected from retaliation, without making an express complaint of discrimination? and
  • Do a series of subtle acts by a company amount to retaliation?

The Supreme Court answered yes to both of these questions.

In the L’Oreal case, a regional sales manager, Ms. Yanowitz, was told by her general manager to fire a dark skinned female fragrance sales associate because she was "not good looking enough" and instead to "get [him] somebody hot." On a separate occasion he pointed to a young attractive blond and told Yanowitz to "get me some one that looks like that." While it is conceivable that physical attractiveness could be a legitimate criterion for certain jobs (e.g. modeling for instance), the Supreme Court did not rule on this issue. It did note that the company did not have a policy that its sales associates had to be attractive nor had such a policy been applied to male sale associates. When Ms. Yanowitz inquired about the sales associate’s performance, she learned that she was one of the top performers. Yanowitz asked repeatedly for the general manager to provide "adequate justification" for termination and refused to carry out the termination. However, she did not complain to her immediate supervisor or Human Resources.

Following her refusal to terminate the sales associate and over the course of more than a year, her immediate supervisor solicited negative criticism from her subordinates, gave her negative performance reviews and criticized her publicly in front of her subordinates, refused to give her additional time to respond to such criticisms, implied in a meeting that she might be terminated and gave her directives that limited her authority with her staff. The company maintained that its actions were legitimate, in response to customer and employee dissatisfaction and that Ms. Yanowitz had been previously criticized for poor listening skills and her attitude. Ms. Yanowitz maintained that the company’s actions were unwarranted and retaliatory. Prior her refusal to terminate the sales associate, Ms. Yanowitz had had a long history of above average to outstanding job performance and had been an honored employee.

The Supreme Court did not discuss whether the company had a complaint procedure in place or what the consequences of Ms. Yanowitz’s failure to use it would be.

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