Recent California Supreme Court Ruling Does NOT Place "Attractiveness" in a Protected Category, But it Does Require Employers to be Mind Readers
While many are reading this case as establishing a protected category for "attractiveness" the Court does not go that far (or depending on your perspective- is not that limited). It basically states that if an employee believes that an order or conduct of his/her employer (in this case the employer told the employee to fire a sales person because she was "not good looking enough" and to "[g]et me somebody hot) is discriminatory - even though under the law it is not - and the employee complains or puts the employer on notice that he or she believes the conduct to be discriminatory, the employee can have a claim for retaliation.
In this case, the plaintiff claims she complained of sexual harassment when she questioned her supervisor's request to terminate the sales associate for somebody more attractive. The plaintiff said that after she did not fire the sales associate, her supervisor asked why this had not been done yet, and she responded that her supervisor needed to give her "adequate justification" for firing the sales associate.
Justice Chin, who disagreed with the Court's ruling, wrote in his dissenting opinion that:
She [the plaintiff] never mentioned to anyone within the company that she felt the order was discriminatory. She never explained, or even alluded to, what she articulated in her declaration that "[t]his was the first time in all of my years as Regional Sales Manager that anybody had ever asked me to make a final employment decision based upon the physical appearance, much less the subjective physical appearance, of an employee." She kept her belief, and all of the reasons she allegedly had for that belief, entirely to herself.
The majority claims that plaintiff's statement to Wiswall [plaintiff's supervisor] that she needed justification presents a prima facie case that she complained of unlawful sex discrimination. This statement, however, was not a claim of discrimination at all, much less sex discrimination. As L'Oreal aptly points out, a manager's request for "adequate justification" from a superior could convey reservations about the wisdom or soundness of the superior's directive from a business standpoint - why seek the removal of a salesperson who (the manager believes) is doing a good job? Why needlessly risk antagonizing the important account employing the salesperson? The manager may simply be reluctant to carry out an unpleasant task directed at a person the manager personally likes or respects. Or perhaps she simply thinks the directive is unfair.
All of these are very logical possibilities that have nothing to do with sex discrimination or discrimination of any kind. Indeed, plaintiff herself indicates in her declaration she believed the order was a bad business decision because the salesperson in question was a top performer - information that she also apparently kept to herself. Plaintiff's mere request for justification is even further removed from a complaint of discrimination than those found too vague in the cases cited above. She did not come close to making "an overt stand against suspected illegal discriminatory action." Nor did she even give Wiswall, or anyone within L'Oreal, "sufficient facts from which he could conclude that plaintiff's problem involved sex discrimination. At most, she "was contesting the correctness of a decision made by [her] employer," which is insufficient. (citations omitted)
Basically, employers now need to read employees' minds regarding whether an action they have taken is believed by the employee to be in violation of the law and if the employee does not specifically say that they believe the action is in violation of the law, the employer still needs to examine the employee's mannerisms to extrapolate whether the employee subjectively believes the employer violated the law. Justice Chin, again, makes a good point in his dissent: "It makes no sense to hold both that the conduct need not be unlawful and that the plaintiff need not complain of it."
The Court also clarified two other technical aspects of sexual harassment law: (1) the Court held that the proper standard for defining an adverse employment action is the "materiality" test, as opposed to the "deterrence" test; and (2) the "continuing violation" doctrine is applicable to retaliation claims and courts may consider the totality of circumstances (including violations that allegedly occurred outside of the statute of limitations period).
Yanowitz will have a dramatic effect on employers within California. Justice Chin appropriately concluded his dissent by stating: "The FEHA's purpose is to prevent discrimination, not to encourage employees to generate lawsuits quietly. The majority encourages the generation of stealth lawsuits but does nothing to further the purpose of the retaliation cause of action or the FEHA itself."