Monday, March 10, 2003
Court of Appeal Rules:
Firing Woman for Lack of Attractiveness Violates Anti-Bias Law
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 First District Court of Appeal ruled Friday.
“A male executive’s order to fire a female employee because she fails to meet the executive’s standards for sexual attractiveness is an act of sex discrimination when no similar standards are applied to men,” Justice Linda Gemello wrote for Div. Five. “A lower-level manager’s refusal to carry out that order is protected activity, and an employer may not retaliate against her for that refusal. “
The ruling reinstates Elysa Yanowitz’s suit against L’Oreal USA, Inc. Yanowitz claims she was forced to take a stress leave, and was eventually replaced, as a middle-level manager with the company for reasons which included her telling the new manager of her division that she would not terminate the associate without a better reason.
Religious Bias 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. 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, said that while he remains convinced that anti-Semitism was involved, it would be difficult to prove without endangering the standing of current employees.
“My wife and I decided early on we were not going to pursue the case in a manner that would jeopardize the jobs of anybody,” he told the MetNews. He added that the couple was “gratified that the court has acknowledged that loyal middle managers cannot be fired for opposing sexism in the workplace.”
L’Oreal’s attorney, William J. Carroll, did not return a phone call seeking comment.
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.
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. 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.
Gemello, writing for the Court of Appeal, said there was sufficient evidence from which a jury could infer that Yanowitz was the victim of retaliation because she opposed sex discrimination.
The justice agreed with L’Oreal that it could not be held liable for discrimination based on physical appearance, which is not a protected category under FEHA. But “the unwritten establishment of two sets of rules for success: for men, based on performance, and for women, based on appearance” is one of “the many guises” of sex discrimination in the workplace, Gemello wrote.
She citied a federal case holding that female sex appeal was not a bona fide occupational qualification for the position of airline flight attendant or ticket agent because “vicarious sex entertainment” was not “the primary service provided” by the airline.
Other federal cases, the justice explained, have held that an employer may not subject women to “more severe and burdensome appearance standards” than men, or to subject individuals to gender-based appearance standards, for example by requiring a woman to wear sexually revealing or suggestive attire not essential to the job.
“We find Wiswall’s actions analogous,” Gemello wrote. “An explicit order to fire a female employee for failing to meet a male executive’s personal standards for sexual desirability is sex discrimination. Yanowitz’s evidence permits the inference that Wiswall would not have ordered the employee fired if she had been a man, simply because a man’s physical attractiveness would not have been an issue.”
The case is Yanowitz v. L’Oreal USA, Inc., 03 S.O.S. 1236.
Copyright 2003, Metropolitan News Company