Yanowitz v. L’Oreal USA, Inc.
Refusing a supervisor’s order the employee reasonably believes is discriminatory is protected activity under the FEHA; an adverse employment action is one that “materially affects” the terms and conditions of employment, judged over the whole course of the employer’s conduct.
Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028
Retaliation
Protected Activity
Adverse Employment Action
FEHA
Affirmed
In brief. The California Supreme Court held that “an employee’s refusal to follow a supervisor’s order that she reasonably believes to be discriminatory constitutes protected activity under the FEHA,” even where the employee “does not explicitly state” that belief, so long as the employer “knows that the employee believes the order to be discriminatory.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1036.) It adopted the “materiality” test for adverse employment actions and held that retaliation may consist of “a series of subtle, yet damaging, injuries,” not just “one swift blow.” (Id. at pp. 1036, 1055–1056.)
Facts
Elysa Yanowitz was a regional sales manager for L’Oreal who had received strong evaluations and a national award. (36 Cal.4th at pp. 1037–1038.) During a 1997 store tour, the general manager of the designer fragrance division, Jack Wiswall, “instructed Yanowitz to terminate the employment of a dark-skinned female sales associate because he did not find the woman to be sufficiently physically attractive.” (Id. at p. 1038.) Expressing “a preference for fair-skinned blondes,” Wiswall directed her to “[g]et me somebody hot.” (Ibid.) On a later visit, finding the associate still employed, Wiswall passed “a young attractive blonde girl, very sexy,” and told Yanowitz, “God damn it, get me one that looks like that.” (Ibid.) Yanowitz repeatedly asked Wiswall for an “adequate justification” and, on learning the associate was among the top sellers of men’s fragrances in the chain, refused to fire her; she did not expressly tell anyone she believed the order was sex discrimination. (Id. at pp. 1038–1039.) Thereafter, Yanowitz’s superiors began assembling negative documentation, solicited complaints about her, and subjected her to heightened criticism and scrutiny; she eventually took a disability leave and did not return. (Id. at pp. 1039–1041.) She sued for retaliation under the FEHA, Government Code section 12940, subdivision (h). (Id. at p. 1041.)
Procedural history
The trial court granted L’Oreal summary judgment. (36 Cal.4th at p. 1041.) The Court of Appeal reversed as to the retaliation claim, applying a “deterrence” standard for adverse action. (Ibid.) The Supreme Court granted review and affirmed the Court of Appeal’s judgment reversing summary judgment, but on the narrower “materiality” standard for adverse employment actions. (Id. at pp. 1036–1037, 1062.)
Issue
Three questions: (1) whether refusing an order the employee reasonably believes is discriminatory — without expressly saying so — is “protected activity”; (2) what standard defines an “adverse employment action” for FEHA retaliation; and (3) whether a series of acts, none independently sufficient, may collectively constitute such an action. (36 Cal.4th at pp. 1035–1036.)
Holding
(1) “[A]n employee’s refusal to follow a supervisor’s order that she reasonably believes to be discriminatory constitutes protected activity,” actionable when the employer, “in light of all the circumstances, knows that the employee believes the order to be discriminatory, even when the employee does not explicitly state” it. (36 Cal.4th at p. 1036.) (2) The governing standard is the “materiality” test: an adverse action must “materially affect the terms, conditions, or privileges of employment,” reaching “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement.” (Id. at pp. 1036, 1052, 1054.) (3) Retaliatory conduct need not “constitute one swift blow, rather than a series of subtle, yet damaging, injuries,” and the totality of the circumstances and the continuing-violation doctrine apply. (Id. at pp. 1055–1056.) Affirmed. (Id. at p. 1062.)
Reasoning
1. Protected activity without “magic words.” The Court held that FEHA protection does not require an employee to “explicitly inform the employer” that she views an order as unlawful; the question is whether, “in light of all the circumstances,” the employer knows the employee believes the order discriminatory. (36 Cal.4th at pp. 1036, 1046–1047.) The protection attaches to conduct the employee “reasonably and in good faith believes to be discriminatory, whether or not the challenged conduct is ultimately found to violate the FEHA.” (Id. at p. 1043.) At the same time, the Court cautioned that an employee’s complaints or refusals must “sufficiently convey the employee’s reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner.” (Id. at p. 1047.)
2. Rejecting both extremes on adverse action. The Court declined to limit retaliation to “ultimate employment actions such as termination or demotion,” and also rejected the Court of Appeal’s broad “deterrence” test. (36 Cal.4th at pp. 1049–1052.) It chose the middle “materiality” standard: section 12940 “protects an employee against unlawful discrimination with respect not only to so-called ultimate employment actions . . . but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” (Id. at p. 1054.) “Minor or relatively trivial adverse actions . . . that . . . do no more than anger or upset an employee” are not actionable, but treatment “reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion” is. (Ibid.)
3. Context and the realities of the workplace. Because “[r]etaliation claims are inherently fact specific,” the impact of an employer’s action “must be evaluated in context,” taking account of “the unique circumstances of the affected employee as well as the workplace context of the claim.” (36 Cal.4th at p. 1052.) The materiality inquiry “is not, by its nature, susceptible to a mathematically precise test” and must weigh “the legitimate interests of both the employer and the employee.” (Id. at p. 1054.)
4. The whole course of conduct. Most consequentially for litigation, the Court held that a pattern may be aggregated: “There is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.” (36 Cal.4th at p. 1055.) “Enforcing a requirement that each act separately constitute an adverse employment action would subvert the purpose and intent” of the statute. (Ibid.) Courts therefore consider “the totality of the circumstances” and may apply the continuing-violation doctrine of Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798. (Id. at pp. 1055–1058.)
5. Application. Viewing the record in the light most favorable to Yanowitz, the Court found triable issues: a jury could find she engaged in protected activity by refusing the order and that the cumulative campaign of negative documentation, solicited criticism, and heightened scrutiny materially affected the terms and conditions of her employment. (36 Cal.4th at pp. 1058–1062.) Summary judgment was therefore properly reversed. (Id. at p. 1062.)
6. The partial dissent. Justice Chin, joined by Justice Baxter, concurred in part and dissented. He argued that Wiswall’s appearance-based order “was not so blatantly discriminatory on the basis of sex as to place L’Oreal on notice that plaintiff was opposing an act of sex discrimination,” and that, because Yanowitz “kept to herself” the reasoning that made the order seem sex-based, she had not engaged in protected activity of which the employer was aware. (36 Cal.4th at pp. 1066–1071 (conc. & dis. opn. of Chin, J.).) Absent employer awareness, he reasoned, there could be no causal link to retaliation. (Ibid.)
Significance
Yanowitz is the leading California decision defining FEHA retaliation. Its “materiality” standard for adverse employment actions, its protection of good-faith refusals without “magic words,” and above all its “series of subtle, yet damaging, injuries” holding are cited in nearly every retaliation case and underpin the standard jury instructions (CACI No. 2505). The whole-course rule is a powerful tool for plaintiffs facing a paper-trail campaign rather than a single dramatic act. The decision predates, and is generally more employee-protective than, the federal retaliation standard of Burlington Northern & Santa Fe Railway Co. v. White (2006) 548 U.S. 53. It sits alongside the FEHA causation framework of Harris v. City of Santa Monica (2013) 56 Cal.4th 203 and the proof structure of Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317. See the Review’s coverage of the retaliation line.
Key quotes
“[A]n employee’s refusal to follow a supervisor’s order that she reasonably believes to be discriminatory constitutes protected activity under the FEHA.” (Yanowitz, supra, 36 Cal.4th at p. 1036.)
Section 12940 protects against adverse action affecting “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” (Id. at p. 1054.)
“There is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.” (Id. at p. 1055.)
Read the full opinion (California Supreme Court — full text) →
Practice pointer
Plead the campaign, not just the climax. Yanowitz’s whole-course rule lets plaintiffs aggregate a series of individually minor actions — negative write-ups, solicited complaints, heightened scrutiny, isolation — into a single materially adverse action; build the chronology and argue cumulative impact, invoking the continuing-violation doctrine for older acts. On protected activity, gather circumstantial proof that the employer knew the employee believed an order or practice discriminatory, since express statements are not required but employer awareness is. Anticipate the Chin-dissent line of defense — that the employer lacked notice — by documenting what the employer knew and when. Frame causation under Harris and the burden-shifting of Guz.
Open questions
How much an employer must know to be charged with awareness that an employee is opposing discrimination — the crux of the Yanowitz dissent — remains contested, especially where the employee never voices the protected basis. The boundary between “trivial” actions that merely upset and conduct that “materially affects” job performance or advancement continues to be litigated, as does the precise interaction of the whole-course rule with the statute of limitations and the continuing-violation doctrine.