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Is Instruction To Fire Employee Because She Is Not "Hot Enough" Sex Discrimination?

By Carolyn G. Burnette
  • July 2, 2003

Do looks really matter? On March 7, 2003, a California Court of Appeal ruled a manager's order to fire a female employee for failing to meet his personal standards of sexual attractiveness constituted sex discrimination, because no similar standard applied to men. The Court further ruled such acts could constitute retaliation against the employee who refused to carry out the order. If this decision sounds controversial, it was. On June 11, 2003, the California Supreme Court voted 6-1 to review the appellate court's ruling. Will the Supreme Court take a different approach? We will have to wait a few months to find out. In the meantime, however, the Court of Appeal's decision is instructive to employers on various issues, regardless of the eventual outcome of the case.

How It Happened

The case is Yanowitz v. L'Oreal USA, Inc., and the events began in 1981. Elysa Yanowitz was hired that year by L'Oreal's predecessor as a sales representative. Yanowitz eventually was promoted to Regional Sales Manager, a position in which she was responsible for stores in eleven states. In her first ten years of employment, Yanowitz consistently was rated "above expectation" and just short of "outstanding," the highest rating possible. In 1997, Yanowitz was named Regional Sales Manager of the Year. Yanowitz survived downsizing that resulted from a late 1997 merger, and afterward was even given more responsibility.

Shortly after the merger, Yanowitz's General Manager, John Wiswall, instructed Yanowitz to discharge a sales associate because she was not "good looking enough." Wiswall also told Yanowitz to get him "somebody hot" or words to that effect.

Wiswall subsequently learned that Yanowitz had not discharged the employee, and reiterated his demand she be fired immediately. Wiswall pointed out a young attractive blond woman, and said to Yanowitz, "God damn it, get me one that looks like that." The employee Wiswall wanted fired was dark skinned, not blond. She also was a top performer.

Yanowitz told Wiswall she would not fire the female employee unless he provided adequate justification for such a decision. Wiswall never provided the justification, and Yanowitz never carried out the order. On several subsequent occasions, Wiswall persisted with his inquiries to Yanowitz regarding whether the woman had been fired.

Yanowitz's immediate supervisor was Richard Roderick, a Vice President. Roderick reported directly to Wiswall. In early 1998, Roderick and Wiswall began a campaign of alleged retaliation against Yanowitz which included the following: 1) soliciting negative information about Yanowitz from her subordinates; 2) calling a special meeting to criticize Yanowitz's "dictatorial" management style; 3) commenting to Yanowitz at the special meeting that "it would be a shame to end an eighteen-year career this way;" 4) auditing Yanowitz's expense reports; 5) screaming at Yanowitz during a meeting with her peers that Wiswall was "sick and tired of all the f___ ups," and Yanowitz "could not get it right;" and 5) sending memoranda to Human Resources criticizing Yanowitz for being "too assertive."

In July 1998, Roderick sent a critical memorandum to Yanowitz and demanded she respond within one week. Roderick later met Yanowitz regarding the memorandum (Human Resources was present), but Yanowitz's response was not discussed. Yanowitz broke into tears at the meeting, and went on a stress leave two days later. She never returned, and filed suit in 1999. The primary claim considered by the Court was a cause of action for retaliation under the California Fair Employment and Housing Act ("FEHA").

The Lower Court's Decision: No FEHA Violation Occurred Because Physical Appearance Is Not A "Protected Category"

L'Oreal filed a motion for summary judgment of Yanowitz's FEHA claims. With respect to the retaliation cause of action, Yanowitz had the initial burden of providing proof: 1) she had engaged in a protected activity; 2) L'Oreal had subjected her to an adverse employment action; and 3) there was a causal connection between the protected activity and the adverse action. The trial court ruled against Yanowitz, holding she had failed to establish she had engaged in a protected activity because physical appearance is not a protected category under the FEHA, and because Yanowitz had not expressly complained she believed Wiswall was ordering her to engage in illegal discrimination (Yanowitz had merely requested "adequate justification" for firing the sales associate). Yanowitz appealed the decision.

The Court Of Appeal's Decision: A FEHA Violation Occurred Because Applying Different Appearance Standards To Men And Women Is Discrimination

The Court of Appeal took a different approach to Yanowitz's claim. The Court stated the question to be considered was not whether physical appearance is a "protected category." Rather, the issue was one of sex discrimination: may a male executive insist a female subordinate be discharged because she is not sexually appealing to him, when no similar orders are issued with respect to male employees?

The Court's unequivocal answer was "no." The Court relied on established federal law, and noted the long-standing rule that an employer may not hire only attractive women as employees. In particular, the Court cited a 1981 case, Wilson v. Southwest Airlines Co. In that action, Southwest Airlines was forced to defend its then-existing policy that only attractive women could be hired as flight attendants and ticket agents. Southwest argued that female sex appeal was a bona fide occupational qualification ("BFOQ") under Title VII because it wanted to project a "sexy image and fulfill its public promise to take passengers skyward with love." Because Southwest was not in a business in which "vicarious sex entertainment is the primary service provided," the district court rejected Southwest's BFOQ defense.

The L'Oreal Court further noted that an employer may not hire both men and women and then subject the women to more stringent appearance standards (i.e., greater weight restrictions). Again, the Court relied on an airline case, Frank v. United Airlines, Inc. In that action, the plaintiffs challenged United Airline's weight regulations. Although the regulations applied to both male and female employees, they imposed significantly greater burdens on women, requiring them to be comparatively much thinner. The Ninth Circuit reversed a grant of summary judgment under both Title VII and the FEHA based on the employer's disparate treatment of its male and female employees' appearance.

Finally, the Court concluded Yanowitz's evidence was sufficient to establish an inference that Wiswall would not have ordered any male employee fired based on nothing more than physical appearance. This was sufficient to establish an inference of illegal sex discrimination that could be the basis of Yanowitz's retaliation claim.

The Scope of "Protected Activity"

The L'Oreal Court made two important points when ruling Yanowitz had engaged in a protected activity that could be the basis of a retaliation claim. First, it was not necessary for Yanowitz to prove Wiswall's order was discriminatory. She only had to establish she had a "good faith, reasonable belief that it was." Second, it was not necessary for Yanowitz to communicate to anyone at L'Oreal her belief Wiswall's order was discriminatory. The Court expressly stated that the "refusal to carry out a discriminatory order is protected whether or not the employee explains to the employer the unlawfulness of the conduct. . . . An employer issuing an unlawful order may fairly be charged with notice that the order is unlawful, it is not the employee's burden to educate the employer."

Court Of Appeal Applies "Deterrence Test" To Determine Whether "Adverse Action" Occurred

The L'Oreal Court extensively discussed whether the acts taken against Yanowitz constituted an "adverse employment action" sufficient to form the basis of a retaliation claim. These acts included such things as soliciting negative information about Yanowitz from her subordinates, sudden criticism of Yanowitz's management style, implying Yanowitz's career was coming to an end, humiliating Yanowitz in front of her peers, and auditing her expense reports for no apparent reason.

The Court rejected a test adopted by some federal circuits that considers only ultimate employment decisions (i.e., hiring, firing and promotions) actionable retaliation. Instead, the Court adopted a test articulated by the federal Ninth Circuit and the EEOC -- the "deterrence test." This standard defines an adverse action as one that is "reasonably likely to deter employees from engaging in protected activity." The test requires a "case-by-case determination based upon objective evidence."

After applying this test to the facts at issue in L'Oreal, the Court concluded Yanowitz met her burden to establish an adverse employment action. According to the Court, Yanowitz's evidence showed "more than just criticism." It further noted that a reasonable jury could find that "the handwriting was on the wall and Yanowitz's chances of career advancement were finished as a result of her refusal to carry out her supervisor's order."

Court Of Appeal Finds Pretext Based On Timing And Nature Of The Employer's Adverse Actions

L'Oreal argued it could not be liable for retaliation because its criticisms of Yanowitz's performance were true. The Court rejected this argument based on: 1) the proximity in time between L'Oreal's adverse actions against Yanowitz and her refusal to follow Wiswall's order; 2) Yanowitz's ten-year history of excellent work performance; 3) the fact that Roderick and Wiswall proactively sought negative information concerning Yanowitz; and 4) L'Oreal's refusal to consider Yanowitz's written response to Rodericks' memorandum about her performance during the meeting with Human Resources. After making this determination, the Court reversed the trial court's decision regarding the retaliation claim, and remanded the case for further proceedings.

Lessons Learned

Regardless of whether the Supreme Court upholds the L'Oreal decision, employers would be wise to keep the following in mind:

  • Employment decisions should not be based on physical characteristics (barring a bona fide reason for doing so, such as casting actor for a particular role or endurance requirements for firefighter/law enforcement jobs).
  • Even where a bona fide reason exists for making a physical characteristic a condition of the job, the condition (with few exceptions) must be equally applied to men and women.
  • When investigating reports of retaliation, employers should consider all acts that might be construed as retaliatory, not just "ultimate employment decisions" (i.e., hiring, firing, transferring, promotions, etc.).
  • Employers must immediately address all claims of retaliatory conduct -- even when convinced the complaining employee is wrong about his or her belief that a particular request is improper. Remember, an employee need only establish he or she had a reasonable, good faith belief he or she was being asked to engage in an improper activity to establish retaliation.
  • Employers should give sufficient consideration to an employee's rebuttal to criticism by a supervisor or others to avoid further evidence of retaliation/pretext.
  • Employers should consider enacting policies that require employees to report to Human Resources (or some other monitoring authority) any instructions they consider improper.
  • Employers with further questions regarding the L'Oreal decision or the general topic of retaliation in the workplace should consult with experienced employment counsel.

©2003 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

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