A new California appellate court ruling underscores how you can wind up in legal hot water if you terminate an employee for refusing to carry out a discriminatory order. Here’s what happened.
Supervisor Ordered to Replace Employee over Looks
Elysa Yanowitz received consistently high performance ratings during her 10-year sales career at L’Oréal USA Inc. Eventually Yanowitz became a sales manager.
General manager John Wiswall allegedly told Yanowitz to fire a female sales associate at the San Jose Macy’s store because she was “not good-looking enough.” He also reportedly said that Yanowitz should instead get him “somebody hot.”
When Wiswall later discovered the sales associate hadn’t been dismissed, he allegedly again told Yanowitz to fire the associate. Then, referring to an attractive blond woman nearby, Wiswall said to Yanowitz, “God damn it, get me one that looks like that.” The sales associate, in contrast, was dark-skinned.
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Manager Refuses Order
Yanowitz refused to terminate the sales associate, who was performing well. From that point on, Wiswall and Yanowitz’s immediate supervisor allegedly subjected Yanowitz to heightened scrutiny, including baseless audits of her travel expenses and hostile evaluations. She went out on stress leave and was eventually replaced.Yanowitz sued L’Oréal under the California Fair Employment and Housing Act (FEHA), contending she was retaliated against because she opposed sex discrimination. L’Oréal countered that the FEHA doesn’t protect discrimination based on physical appearance so Yanowitz’s refusal to carry out the order wasn’t protected.
Manager’s Refusal Protected, Court Rules
Now a California Court of Appeal has given Yanowitz the green light to proceed with her retaliation lawsuit. The court agreed with L’Oréal that discrimination based on physical appearance isn’t a protected category under California law. But, said the court, having two different standards—one performance-based for men and one appearance-based for women—could amount to sex discrimination. And, an explicit order to terminate a female employee for not meeting a male executive’s personal standards for sexual desirability is sex discrimination under California law. The court went on to rule that a manager’s refusal to carry out a discriminatory order is a protected activity, and that the person can’t be retaliated against for the refusal.
How to Avoid Trouble
To avoid similar retaliation claims, instruct managers during EEO training that it is illegal to take an adverse action against an employee who questions or refuses to carry out a potentially discriminatory order. Remember the employee doesn’t ultimately have to prove the order was actually discriminatory, only that he or she had a reasonable, good-faith belief it was.
Also, keep in mind that creating a gender-based workplace appearance requirement based on the employer’s idea of what’s attractive for women—as opposed to basing appearance standards on legitimate business requirements—qualifies as sex discrimination.