The California Supreme Court has upheld a ruling in favor of a woman who accused L'Oreal USA, Inc. of retaliating against her because she refused to carry out an order to fire a female sales associate who a supervisor said was not "hot" enough.

Elysa J. Yanowitz, who was a regional sales manager, accused the company of retaliating against her after she refused to follow a supervisor's order to fire an employee whom the supervisor thought was unattractive and to hire somebody "hot."

Yanowitz says she had never been asked to fire a male sales associate over his looks. She asked the supervisor for an adequate justification before she would terminate the female associate, but she says she never received one.

After she refused to fire the sales associate, the company retaliated against her by subjecting her to heightened scrutiny and subjecting her to treatment that caused severe emotional distress that led her to leave her position, according to Yankowitz.

In the case, the court had to decide whether an employee's refusal to follow a supervisor's order that the employee reasonably believes to be discriminatory constitutes "protected activity" under state law, even when the employee fails to complain directly that she believes the order violates the state's nondiscrimination law.

The company argued that the Yanowitz's actions fell outside the definition of "protected activity" because she never explicitly informed the supervisor or the company of her belief that the order was discriminatory. Yanowitz argued that her requests for "adequate justification" for the termination amounted to notification.

The California Supreme Court rejected L'Oreal's argument.

"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 California Fair Employment and Housing Act, 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," the court wrote.

The court noted that there may be circumstances in which a subordinate employee may wish to avoid directly confronting a supervisor with a charge of discrimination and the employee engages in subtler or more indirect means in order to avoid furthering or engaging in discriminatory conduct.

"We believe it is clear that 'an employee is not required to use legal terms or buzzwords when opposing discrimination,'" the court wrote. "The court will find opposing activity if the employee's comments, when read in their totality, oppose discrimination."

The California Supreme Court decision affirms the judgment of the Court of Appeal, which reversed a summary judgment entered in favor of L'Oreal.

Link

• Test of California Supreme Court ruling (PDF)