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Yanowitz v. L'Oreal USA, Inc.

Supreme Court of California

August 11, 2005, Filed



 [**1125]  [***439]   GEORGE, C. J.—Plaintiff Elysa J. Yanowitz was a regional sales manager employed by defendant L'Oreal USA, Inc. (L'Oreal), a prominent cosmetics and fragrance company. Yanowitz alleges that after she refused to carry out an order from a male supervisor to terminate the employment of a female sales associate who, in the supervisor's view, was not sufficiently sexually attractive or “hot,” she was subjected to heightened scrutiny and increasingly hostile adverse treatment that undermined her relationship with the employees she supervised and caused severe emotional distress that led her to leave her position. In bringing this action against L'Oreal, Yanowitz contended, among other [****3]  matters, that L'Oreal's actions toward her constituted un [**1126]  lawful retaliation in violation of the provisions of Government Code section 12940, subdivision (h) (section 12940(h)), which forbids employers from retaliating against employees who have acted to protect the rights afforded by the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). 1 

Section 12940(h) makes it an unlawful employment practice for an employer “to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” In this case, we are presented with an array of issues regarding the proper legal standards to apply in determining whether an allegedly retaliatory action by an employer is actionable under section [****4]  12940(h). First, we must decide whether an employee's refusal to follow a supervisor's order (to discharge a subordinate) that the employee reasonably believes to be discriminatory constitutes “protected activity” under the FEHA for which the employee may not properly be subjected to retaliation, when the employee objects to the supervisor's order but does not explicitly tell the supervisor or the employer that she (the employee) believes the order violates the FEHA or is otherwise discriminatory. Second, we must decide how the term “adverse employment action”—a term of art that generally is used as a shorthand description of the kind of adverse treatment imposed upon an  [*1036]  employee that will support a cause of action under an employment discrimination statute—should be defined for purposes of a retaliation claim under the  [***440]  FEHA, and whether, in evaluating whether or not an employee was subjected to an adverse employment action under the appropriate standard, each individual sanction or punitive measure to which the employee was subjected must be evaluated separately or instead collectively through consideration of the totality of the circumstances. On a related point, we must decide [****5]  whether a plaintiff may invoke the continuing violation doctrine to rely upon allegedly retaliatory acts that occurred outside the limitations period when such acts are related to acts that occur within the limitations period prescribed by the FEHA. Finally, in light of our conclusions on the foregoing issues, we must determine whether, under the circumstances disclosed by the record in this case, the Court of Appeal properly concluded that the trial court erred in granting summary judgment in favor of the employer.

For the reasons set forth below, we conclude that an employee's refusal to follow a supervisor's order that she reasonably believes to be discriminatory constitutes protected activity under the FEHA and that an employer may not retaliate against an employee on the basis of such conduct 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 to her supervisor or employer that she believes the order to be discriminatory. Second, we conclude that the proper standard for defining an adverse employment action is the “materiality” test, a standard that requires an [****6]  employer's adverse action to materially affect the terms and conditions of employment (see Akers v. County of San Diego (2002) 95 Cal. App. 4th 1441, 1454–1457 [116 Cal. Rptr. 2d 602]), rather than the arguably broader “deterrence” test adopted by the Court of Appeal in the present case. We further conclude that in determining whether an employee has been subjected to treatment that materially affects the terms and conditions of employment, it is appropriate to consider the totality of the circumstances and to apply the “continuing violation” doctrine that we recently adopted in Richards v. CH2M Hill, Inc. (2001) 26 Cal. 4th 798 [111 Cal. Rptr. 2d 87, 29 P.3d 175] (Richards). Finally, applying these general principles to the record that was before the trial court on the summary judgment motion, we conclude the Court of Appeal properly determined that the trial court erred in granting summary judgment in favor of the employer.

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36 Cal. 4th 1028 *; 116 P.3d 1123 **; 32 Cal. Rptr. 3d 436 ***; 2005 Cal. LEXIS 8594 ****; 96 Fair Empl. Prac. Cas. (BNA) 601; 2005 Daily Journal DAR 9664; 151 Lab. Cas. (CCH) P60,048; 86 Empl. Prac. Dec. (CCH) P42,041

ELYSA J. YANOWITZ, Plaintiff and Appellant, v. L'OREAL USA, INC., Defendant and Respondent.

Prior History:  [****1]  First Appellate District, Division Five No. A095474, San Francisco County Superior Court No. 304908, Ronald Evans Quidachay and A. James Robertson II, Judges.

Yanowitz v. L'Oreal USA, Inc., 106 Cal. App. 4th 1036, 131 Cal. Rptr. 2d 575, 2003 Cal. App. LEXIS 342 (Cal. App. 1st Dist., 2003).

Disposition: The court affirmed the decision of the court of appeals.


retaliation, discriminatory, adverse employment action, employees, protected activity, sales associate, terminate, title vii, harassment, terms, retaliation claim, discriminate, opposing, sex discrimination, conditions, privileges of employment, directive, subjected, alleges, continuing violation doctrine, unlawful employment practice, statute of limitations, attractive, disability, retaliatory, believes, purposes, cases, circumstances, female

Civil Procedure, Summary Judgment, Supporting Materials, General Overview, Appeals, Summary Judgment Review, Standards of Review, Motions for Summary Judgment, Opposing Materials, Labor & Employment Law, Retaliation, Elements, Causation, Business & Corporate Compliance, Unfair Labor Practices, Employer Violations, Interference With Protected Activities, Discrimination, Adverse Employment Actions, Protected Activities, Title VII Discrimination, Civil Rights Law, Contractual Relations & Housing, Fair Housing Rights, Disparate Treatment, Defenses, Bona Fide Occupational Qualifications, Statutory Application, Gender & Sex Discrimination, Employment Practices, Actionable Discrimination, Scope & Definitions, Sexual Orientation, Affirmative Action, Racial Discrimination, Scope & Definitions, Evidence, Burdens of Proof, Employee Burdens of Proof, Compensation, Demotions & Promotions, Discharges, Governments, Legislation, Statute of Limitations, Labor & Employment Law, Accommodation, Time Limitations, Entitlement as Matter of Law, Genuine Disputes, Materiality of Facts