Metropolitan News-Enterprise


Friday, August 12, 2005


Page 1


S.C. Revives Suit Over Firing of Woman Deemed Unattractive


By KENNETH OFGANG, Staff Writer/Appellate Courts


A San Francisco woman who claims she was forced from her management position with a cosmetics firm because she would not fire a sales associate her superior considered unattractive has a viable retaliation claim under the Fair Employment and Housing Act, the state Supreme Court ruled yesterday.

“[W]e 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,” Chief Justice Ronald M. George wrote for a 4-2 majority of the court.

The court said the plaintiff, Elysa Yanowitz, presented sufficient evidence to establish a reasonable belief that she was being asked to carry out a policy that amounted to sex discrimination because no similar standards were applied to men.

Yanowitz claims she was forced to take a stress leave, and was eventually replaced, as a middle-level manager with L’Oreal USA, Inc., for reasons which included her telling the new manager of her division that she would not terminate the associate without a better reason.

Racism and Ageism Claimed

Yanowitz also accused the company of discriminating against her because she is Jewish and because of her age, 53 when she left in 1998. Among other things, she claimed that Wiswall, after having perhaps too much to drink, once told another Jewish employee that as a youth he hated Jews because they got extra time off from school for Jewish holidays.

L’Oreal denies that it forced Yanowitz to quit, and says it had legitimate concerns about her performance.

The suit was dismissed after all of her FEHA claims were rejected on motions for summary adjudication.

Yanowitz did not appeal on the age and religion claims. Her attorney and husband, San Francisco sole practitioner Herbert Yanowitz, told the MetNews earlier that while he remains convinced that anti-Semitism was involved, it would be difficult to prove without endangering the standing of current employees.

Yanowitz rose through the ranks of the company, formerly known as Cosmair, Inc. She started as a sales representative in 1981, was named regional sales manager in 1986, and was given additional responsibilities after the company was restructured in 1997.

The restructuring placed Yanowitz under a vice president, Richard Roderick, who reported to a general manager, Jack Wiswall. It was on a visit to a Macy’s store in San Jose that Wiswall allegedly told Yanowitz that he wanted her to get rid of the sales associate because she was “not good looking enough.”

Wiswall wanted the woman, a strong producer, replaced with “somebody hot,” Yanowitz testified. After that, she claims, Roderick and Wiswall began pushing another employee to complain about Yanowitz’s “dictatorial” management style and to identify other employees with “frustrations” about Yanowitz.

Alleged Retaliation

Yanowitz said she was also subjected to a baseless audit of her travel and expense reports, was given a restrictive travel schedule limiting the amount of time she could spend in a particular territory, and was the subject of a series of critical memos, all of which she took to be part of a plan to force her out of the company on the pretext that she was no longer effective.

She took a stress-related disability leave in July 1998, was replaced in November of that year, and filed a discrimination charge in June 1999. Her husband said she has not worked since leaving the company.

The trial judge, George wrote yesterday, erred in throwing out the plaintiff’s claims in the face of evidence that Yanowitz, in all of the years she worked for the company, was never asked to fire a man for being unattractive.

“Because a trier of fact could find from this evidence that Yanowitz believed Wiswall’s order was discriminatory as reflecting an instance of disparate treatment on the basis of sex, we have no occasion in this case to determine whether a gender-neutral requirement that a cosmetic sales associate be physically or sexually attractive would itself be violative of the FEHA or could reasonably be viewed by an employee as unlawfully discriminatory,” the chief justice explained.

Disparate Treatment

But federal cases have uniformly held that the imposition of more stringent appearance standards on employees of one gender than on the other violates Title VII absent proof that the differential treatment is justified as a bona fide occupational qualification, George wrote. “We believe it is clear that such unjustified disparate treatment also would constitute unlawful sex discrimination under the FEHA,” the chief justice declared.

George also rejected L’Oreal’s contention that Yanowitz’s failure to expressly inform the company that she was being asked to violate the antidiscrimination law was fatal to her claim.

The jurist cited the plaintiff’s testimony that she repeatedly asked for, and never received, “adequate justification” for the proposed firing. From that and other evidence, a jury may infer that L’Oreal knew that Yanowitz “opposed” an unlawful discriminatory practice, as required by the FEHA anti-retaliation provision, George said.

Justices Joyce L. Kennard, Kathryn M. Werdegar, and Carlos Moreno joined in George’s opinion.

Justice Ming Chin, in a dissent joined by Justice Marvin Baxter, argued the case should be thrown out because Yanowitz never complained to her superiors about the alleged FEHA violation.

This case thus presents the question whether a person can be a whistleblower without blowing the whistle,” Chin wrote. “At least in this case, where the personnel order was not clearly unlawful, I would say no.”

Former California Supreme Court Justice Joseph Grodin argued the case for the plaintiff in the Supreme Court, with Herbert Yanowitz—who represented his wife in the trial court and Court of Appeal—working on the brief.

Coming on the heels of last week’s ruling that female employees who claim they were passed over for promotion in favor of women who were sexually involved with their boss have a viable FEHA claim,  “I would say it’s been a good couple of weeks for the anti-discrimination law,” Grodin said.

L’Oreal, which was represented by San Francisco attorney William J. Carroll, declined to comment on the decision. 


Copyright 2005, Metropolitan News Company