Thursday, June 12, 2003
S.C. Agrees to Hear Female Ex-Executive’s Retaliation Claim
Woman Who Oversaw Sales Force Says She Was Forced Out for Not Firing Employee Deemed Unattractive by Male Superor
By KENNETH OFGANG, Staff Writer/Appellate Courts
The California Supreme Court yesterday agreed to decide whether an executive who claims she was forced from her position because she would not fire a sales associate her superior considered unattractive has a viable retaliation claim under the Fair Employment and Housing Act.
Six justices—Justice Kathryn M. Werdegar was the lone holdout—voted to grant review in Yanowitz v. L’Oreal USA, Inc., 106 Cal.App.4th 1036.
The First District Court of Appeal last March ordered reinstatement of a suit by Elysa Yanowitz, who alleges 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.
Ruling on Hold
The decision places the First District ruling on hold. It had been cited in several unpublished Court of Appeal opinions in the three months since it was handed down, and two law firms representing large numbers of employers had asked that it be depublished.
The First District panel said Yanowitz could sue for retaliation because the alleged firing order was the product of the male executive’s gender-based stereotypical thinking that women must be attractive in order to sell cosmetics.
“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.”
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. When she said that was not sufficient ground to fire a capable employee, she claims, Roderick and Wiswall began a series of retaliatory actions, including stirring up complaints from Yanowitz’s subordinates and subjecting her to a baseless audit of her travel and expense reports.
Inference of Retaliation
Gemello, writing for the Court of Appeal, said there was sufficient evidence from which a jury could infer that the plaintiff 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 cited 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.
Copyright 2003, Metropolitan News Company