Supreme Court of California Justia
Docket No. S115154

Yanowitz v. L



Filed 8/11/05



IN THE SUPREME COURT OF CALIFORNIA



ELYSA J. YANOWITZ,

Plaintiff and Appellant,

S115154

v.

Ct.App. 1/5 A095474

L’OREAL USA, INC.,

San Francisco County

Defendant and Respondent.

Super. Ct. No. 304908



Plaintiff Elysa J. Yanowitz was a regional sales manager employed by

defendant L’Oreal USA, Inc. (L’Oreal), a prominent cosmetics and fragrance

company. Yanowitz alleges that after she refused to carry out an order from a

male supervisor to terminate the employment of a female sales associate who, in

the supervisor’s view, was not sufficiently sexually attractive or “hot,” she was

subjected to heightened scrutiny and increasingly hostile adverse treatment that

undermined her relationship with the employees she supervised and caused severe

emotional distress that led her to leave her position. In bringing this action against

L’Oreal, Yanowitz contended, among other matters, that L’Oreal’s actions toward

her constituted unlawful retaliation in violation of the provisions of Government

Code section 12940, subdivision (h) (section 12940(h)), which forbids employers

from retaliating against employees who have acted to protect the rights afforded

1




by the California Fair Employment and Housing Act (FEHA) (Gov. Code, §

12900 et. seq).1

Section 12940(h) makes it an unlawful employment practice for an

employer “to discharge, expel, or otherwise discriminate against any person

because the person has opposed any practices forbidden under this part or because

the person has filed a complaint, testified, or assisted in any proceeding under this

part.” In this case, we are presented with an array of issues regarding the proper

legal standards to apply in determining whether an allegedly retaliatory action by

an employer is actionable under section 12940(h). First, we must decide whether

an employee’s refusal to follow a supervisor’s order (to discharge a subordinate)

that the employee reasonably believes to be discriminatory constitutes “protected

activity” under the FEHA for which the employee may not properly be subjected

to retaliation, when the employee objects to the supervisor’s order but does not

explicitly tell the supervisor or the employer that she (the employee) believes the

order violates the FEHA or is otherwise discriminatory. Second, we must decide

how the term “adverse employment action” — a term of art that generally is used

as a shorthand description of the kind of adverse treatment imposed upon an

employee that will support a cause of action under an employment discrimination

statute — should be defined for purposes of a retaliation claim under the FEHA,

and whether, in evaluating whether or not an employee was subjected to an

adverse employment action under the appropriate standard, each individual

sanction or punitive measure to which the employee was subjected must be

evaluated separately or instead collectively through consideration of the totality of


1

All further statutory references are to the Government Code, unless

otherwise indicated.

2



the circumstances. On a related point, we must decide whether a plaintiff may

invoke the continuing violations doctrine to rely upon allegedly retaliatory acts

that occurred outside the limitations period when such acts are related to acts that

occur within the limitations period prescribed by the FEHA. Finally, in light of

our conclusions on the foregoing issues, we must determine whether, under the

circumstances disclosed by the record in this case, the Court of Appeal properly

concluded that the trial court erred in granting summary judgment in favor of the

employer.

For the reasons set forth below, 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 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. Second, we conclude

that the proper standard for defining an adverse employment action is the

“materiality” test, a standard that requires an employer’s adverse action to

materially affect the terms and conditions of employment (see Akers v. County of

San Diego (2002) 95 Cal.App.4th 1441, 1454-1457), rather than the arguably

broader “deterrence” test adopted by the Court of Appeal in the present case. We

further conclude that in determining whether an employee has been subjected to

treatment that materially affects the terms and conditions of employment, it is

appropriate to consider the totality of the circumstances and to apply the

“continuing violation” doctrine that we recently adopted in Richards v. CH2M

Hill, Inc. (2001) 26 Cal.4th 798 (Richards). Finally, applying these general

principles to the record that was before the trial court on the summary judgment

3



motion, we conclude the Court of Appeal properly determined that the trial court

erred in granting summary judgment in favor of the employer.

Accordingly, we shall affirm the judgment of the Court of Appeal, which

reversed the summary judgment entered in favor of defendant.

I.

A

Because this case comes before us after the trial court granted a motion for

summary judgment, we take the facts from the record that was before the trial

court when it ruled on that motion. (State Department of Health Services v.

Superior Court (2003) 31 Cal.4th 1026, 1034-35.) “We review the trial court’s

decision de novo, considering all the evidence set forth in the moving and

opposing papers except that to which objections were made and sustained.” (Id. at

p. 1035.) We liberally construe the evidence in support of the party opposing

summary judgment and resolve doubts concerning the evidence in favor of that

party. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138,

1142.)

Yanowitz began her employment with the predecessor of L’Oreal as a sales

representative in 19812 and was promoted to regional sales manager for Northern

California and the Pacific Northwest in 1986. As regional sales manager,

Yanowitz was responsible for managing L’Oreal’s sales team and dealing with the

department and specialty stores that sold L’Oreal’s fragrances. From 1986 to

1996, Yanowitz's performance as a regional sales manager consistently was

judged as “Above Expectation” and in some instances fell close to “Outstanding,”


2

L’Oreal formerly was known as Cosmair, Inc. We refer to defendant as

L’Oreal throughout.

4



the highest possible rating, although her reviews over this period also consistently

contained some criticism of her “listening” and “communication” skills.

In early 1997, Yanowitz was named L’Oreal’s regional sales manager of

the year (for 1996). She received a Cartier watch and a congratulatory note from

human resources manager Jane Sears praising her leadership, loyalty, motivation,

and ability to inspire team spirit. Yanowitz’s bonuses for the years 1996 and 1997

were the highest paid to any regional sales manager in her division.

Beginning in 1996, Yanowitz’s immediate supervisor was Richard

Roderick, the vice-president of sales for the designer fragrance division. Roderick

reported directly to Jack Wiswall, the general manager of the designer fragrance

division. Roderick and Wiswall worked out of New York, and Yanowitz was

based in San Francisco.

In June 1997, Roderick wrote a memorandum to Yanowitz’s personnel file

in which he criticized Yanowitz’s listening skills and characterized her attitude as

“negative.” He also noted that he had received complaints about Yanowitz’s

attitude from several retailers. In August 1997, Roderick wrote a memorandum to

Sears, L’Oreal’s human resources manager, in which he again criticized Yanowitz

for her listening skills and her “negative” attitude, noting that several accounts

also had complained about Yanowitz’s attitude. Roderick stated in this

memorandum that “Elysa does a terrific job as a regional manager, however, she

must become a better listener and she must not put a gun to the heads of the

retailers in order to get them to do what needs to be done.”

In the fall of 1997, L’Oreal restructured the designer fragrance division,

merging the division with the Ralph Lauren fragrance division. Although some

regional sales managers were laid off after the restructuring, L’Oreal retained

Yanowitz and increased her responsibilities. After the merger and restructuring,

Yanowitz was assigned to supervise the personnel who formerly worked for the

5



Ralph Lauren division, and to supervise the marketing of Ralph Lauren fragrances

in her region.

Shortly after Yanowitz assumed responsibility for the Ralph Lauren sales

force and marketing campaigns in the fall of 1997, Wiswall and Yanowitz toured

the Ralph Lauren Polo installation at Macy's in the Valley Fair Shopping Center in

San Jose. After the tour, Wiswall instructed Yanowitz to terminate the

employment of a dark-skinned female sales associate because he did not find the

woman to be sufficiently physically attractive. Wiswall expressed a preference for

fair-skinned blondes and directed Yanowitz to “[g]et me somebody hot,” or words

to that effect. On a return trip to the store, Wiswall discovered that the sales

associate had not been dismissed. He reiterated to Yanowitz that he wanted the

associate terminated and complained that Yanowitz had failed to do so. He passed

“a young attractive blonde girl, very sexy,” on his way out, turned to Yanowitz,

and told her, “God damn it, get me one that looks like that.” Yanowitz asked

Wiswall for an adequate justification before she would terminate the associate. On

several subsequent occasions, Wiswall asked Yanowitz whether the associate had

been dismissed. On each occasion, Yanowitz asked Wiswall to provide adequate

justification for dismissing the associate. In March 1998, in the midst of

Yanowitz’s conversations with Wiswall regarding the termination of the sales

associate, Yanowitz learned that the sales associate in question was among the top

sellers of men’s fragrances in the Macy’s West chain. Ultimately, Yanowitz

refused to carry out Wiswall’s order and did not terminate the sales associate. She

never complained to her immediate supervisor or to the human resources

department that Wiswall was pressuring her to fire the sales associate, however,

nor did she explicitly tell Wiswall that she believed his order was discriminatory.

In April 1998, Roderick began soliciting negative information about

Yanowitz from her subordinates. Roderick called Christine DeGracia, who

6



reported to Yanowitz, and asked her about any “frustrations” she had with

Yanowitz. When DeGracia said she had had some, Roderick asked her to hold her

thoughts so that the matter could be discussed with human resources. Roderick

and Sears then called back DeGracia to discuss those issues. When Roderick

asked DeGracia whether any other persons were having problems with Yanowitz,

DeGracia did not provide any names. Two weeks later, Roderick called DeGracia

again and told her it was urgent that she help him persuade individuals to come

forward with their problems concerning Yanowitz. In early June 1998, Roderick

again asked DeGracia to notify him of negative incidents involving Yanowitz and

other account executives.

On May 13, 1998, Roderick summoned Yanowitz to L’Oreal’s home office

in New York. Roderick opened the meeting by asking whether she thought she

had been brought in to be terminated, then criticized Yanowitz for her “dictatorial”

management style with regard to two account executives. He closed the meeting

by saying, “It would be a shame to end an eighteen-year career this way.” During

May and June 1998, Roderick and Wiswall obtained Yanowitz’s travel and

expense reports and audited them.

On June 19, 1998, a representative for Macy’s West, one of Yanowitz’s

accounts, wrote to Roderick to complain about the handling of a Polo Sport

promotion, which Yanowitz’s team was responsible for coordinating. In June

1998, Yanowitz met with Wiswall, Roderick, and various account executives and

regional sales managers responsible for the Macy’s account. Wiswall screamed at

Yanowitz in front of her staff, told her he was “sick and tired of all the fuckups”

on the Macy’s account, and said that Yanowitz could not get it right. In July

1998, the Macy’s account executive wrote to Roderick and again complained

about the handling of a different promotion by Yanowitz’s team.

7



On June 22, 1998, Yanowitz wrote Roderick, advising him that her Macy’s

West team was disturbed about certain issues. Wiswall, who had been sent a

copy, wrote a note to Roderick on Yanowitz’s memo: “Dick — She is writing

everything! Are you!!!???” One week after Wiswall’s note, Roderick prepared

three memos to human resources documenting the meeting with Yanowitz on May

13, 1998, a conversation with DeGracia on June 4, 1998, and a visit to Yanowitz’s

market area in early June 1998. These memos were critical of Yanowitz; the

memo discussing the May 13 meeting criticized her for being too assertive.

On July 16, 1998, Roderick prepared a more elaborate memorandum and

delivered it to Yanowitz. The memorandum criticized Yanowitz’s handling of a

Polo Sport promotion, a Picasso promotion, coordination of advertising with

others, handling of the Sacramento market, and the length and substance of a

March 1998 business trip to Hawaii. Roderick closed, “I have yet to see evidence

that you took [the May 13] conversation seriously and made the necessary style

modifications. Elysa, I am quite surprised that a person with so many years of

experience and so many years with Cosmair could become so ineffective so

quickly. [¶] Our business is changing daily and we all must learn to adapt to those

changes or we will fail as individuals and as a company. Your changes must start

immediately. [¶] I expect a reply to this memo within one week of receipt.”

Yanowitz viewed the memorandum as an expression of intent to develop

pretextual grounds and then terminate her. She suggested the parties meet to

discuss a severance package, but also indicated she first wanted to prepare her

written response to the July 16, 1998, memorandum.

Carol Giustino, Sears’s replacement as human resources director, set up a

meeting for July 22 and rejected Yanowitz’s request that the meeting be

postponed. Giustino also denied Yanowitz’s request to have Yanowitz’s attorney-

husband present at the meeting, citing company policy. During the July 22

8



meeting, Roderick and Giustino questioned Yanowitz about the accusations in the

July 16 memorandum without reading her written response. Yanowitz, who was

being treated for nervous anxiety allegedly brought on by the situation at work,

broke down in tears. During the meeting, Roderick imposed a new travel schedule

on Yanowitz, a schedule that regulated precisely how often she should visit each

market in her territory. Two days after the meeting, Yanowitz departed on

disability leave due to stress. She did not return, and L’Oreal replaced her in

November 1998.

B

Yanowitz filed a discrimination charge with the Department of Fair

Employment and Housing (DFEH) on June 25, 1999. She alleged that L'Oreal

had discriminated against her on the basis of sex, age (Yanowitz was 53), and

religion (Yanowitz is Jewish). She also alleged that L’Oreal had retaliated against

her for refusing to terminate the female employee whom Wiswall considered

unattractive.

After receiving a right-to-sue letter from the DFEH, Yanowitz brought this

action against L’Oreal in superior court. The first amended complaint, filed on

September 13, 1999, included claims for age and religious discrimination and

retaliation under the FEHA, violation of the unfair competition law (UCL), and

breach of the covenant of good faith and fair dealing. The second amended

complaint, filed July 21, 2000, added a cause of action for negligent infliction of

emotional distress.

L’Oreal filed two separate motions for summary adjudication. The first

motion challenged Yanowitz’s claims under the FEHA and for emotional distress,

each of which was based upon L’Oreal's conduct toward Yanowitz in 1998. The

second motion challenged Yanowitz’s UCL and good faith and fair dealing

claims, which arose from L’Oreal’s unrelated practice of selling products to

9



distributors other than its primary distributors ⎯ high-end department stores and

specialty stores. Each motion for summary adjudication ultimately was granted,

and judgment was entered in favor of L’Oreal on April 25, 2001.3

With respect to the retaliation claim, the trial court granted summary

judgment in favor of L’Oreal, finding Yanowitz had not engaged in any protected

activity. The Court of Appeal reversed this aspect of the trial court’s judgment,

holding that: (1) Yanowitz’s refusal to obey Wiswall’s sexually discriminatory

order was protected activity under the FEHA; (2) Yanowitz was not required to

give L’Oreal notice that Wiswall’s order was discriminatory; (3) Yanowitz was

not precluded from relying on L’Oreal’s acts that occurred prior to the date of the

alleged adverse action shown in the administrative complaint; (4) L’Oreal’s

conduct constituted adverse employment action; (5) a genuine issue of material

fact remained as to whether L’Oreal’s ostensibly nonretaliatory reasons for the

adverse employment action were pretextual; (6) a workers’ compensation

exclusivity requirement did not bar Yanowitz’s claim for negligent infliction of

emotional distress derivative of her FEHA claim; and (7) L’Oreal's intentional acts

could not provide a basis for establishing negligent infliction of emotional distress.

The appellate court accordingly concluded that the trial court erred in granting

summary judgment in favor of L’Oreal with regard to Yanowitz’s retaliation claim

and reversed the judgment, remanding the matter to the superior court to permit

the retaliation claim to proceed to trial.

L’Oreal petitioned for review, contending (1) with regard to the “protected

conduct” issue, that the Court of Appeal had erred in concluding that Yanowitz’s


3

Originally, Yanowitz prevailed on a single theory underlying her UCL

claim. She dismissed that portion of her suit with prejudice, however, so that a
final, appealable judgment could be entered.

10



acts properly could be considered protected conduct even though Yanowitz had

not specifically notified any supervisor that she believed Wiswall’s order was

discriminatory, and (2) with regard to the “adverse employment action” issue, that

the Court of Appeal had erred (a) in adopting an improper standard for evaluating

whether an adverse employment action was imposed upon an employee, (b) in

aggregating discrete employment actions and considering L’Oreal’s conduct under

a totality of the circumstances approach, and (c) in applying the continuing

violation doctrine to consider adverse actions that occurred outside the statute of

limitations period. Finally, L’Oreal maintained that even if the Court of Appeal

properly found that Yanowitz had established a prima facie case of retaliation, that

court erred in finding that she had presented sufficient evidence to create a triable

issue of fact regarding whether L’Oreal’s ostensible nondiscriminatory reasons for

its actions were pretextual.

In light of the importance of a number of these issues, particularly the

proper standard for determining whether an employee has been subjected to an

adverse employment action, we granted review.

II.

Past California cases hold that in order to establish a prima facie case of

retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a

“protected activity,” (2) the employer subjected the employee to an adverse

employment action, and (3) a causal link existed between the protected activity

and the employer’s action. (Iwekaogwu v. City of Los Angeles (1999) 75

Cal.App.4th 803, 814-815; Flait v. North American Watch Corp. (1992) 3

Cal.App.4th 467, 476 [adopting the title VII (Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq.) burden-shifting analysis of McDonnell Douglas Corp. v. Green

(1973) 411 U.S. 792, 802-805].) Once an employee establishes a prima facie case,

the employer is required to offer a legitimate, nonretaliatory reason for the adverse

11



employment action. (Morgan v. Regents of University of California (2000) 88

Cal.App.4th 52, 68.) If the employer produces a legitimate reason for the adverse

employment action, the presumption of retaliation “drops out of the picture,” and

the burden shifts back to the employee to prove intentional retaliation. (Ibid.)

A

We first must determine whether Yanowitz’s refusal to follow Wiswall’s

order to terminate the sales associate because he found the associate sexually

unattractive was protected activity for which she could not be subjected to

retaliation. The statutory language of section 12940(h) indicates that protected

conduct can take many forms. Specifically, section 12940(h) makes it an unlawful

employment practice “[f]or any employer . . . to discharge, expel, or otherwise

discriminate against any person because the person has opposed any practices

forbidden under this part or because the person has filed a complaint, testified, or

assisted in any proceeding under this part.” (Italics added.) The question here is

whether Yanowitz’s refusal to follow Wiswall’s directive qualifies under the first

category ⎯ that is, whether by refusing the directive, Yanowitz “opposed any

practices forbidden under this part.”

As a threshold matter, L’Oreal does not dispute that an employee’s conduct

may constitute protected activity for purposes of the antiretaliation provision of

the FEHA not only when the employee opposes conduct that ultimately is

determined to be unlawfully discriminatory under the FEHA, but also when the

employee opposes conduct that the employee reasonably and in good faith

believes to be discriminatory, whether or not the challenged conduct is ultimately

found to violate the FEHA. It is well established that a retaliation claim may be

brought by an employee who has complained of or opposed conduct that the

employee reasonably believes to be discriminatory, even when a court later

determines the conduct was not actually prohibited by the FEHA. (See, e.g.,

12



Miller v. Department of Corrections (July 18, 2005, S114097) ___ Cal.4th ___ [p.

35]; Flait v. North American Watch Corp., supra, 3 Cal.App.4th at p. 477; Moyo

v. Gomez (9th Cir. 1994) 40 F.3d 982, 985; Gifford v. Atchison, Topeka & Santa

Fe Ry. Co. (9th Cir. 1982) 685 F.2d 1149, 1157).) 4

Strong policy considerations support this rule. Employees often are legally

unsophisticated and will not be in a position to make an informed judgment as to

whether a particular practice or conduct actually violates the governing

antidiscrimination statute. A rule that permits an employer to retaliate against an

employee with impunity whenever the employee’s reasonable belief turns out to

be incorrect would significantly deter employees from opposing conduct they

believe to be discriminatory. (See, e.g., Gifford v. Atchison, Topeka & Santa Fe

Ry. Co., supra, 685 F.2d at p.1157; Moyo, supra, 40 F.3d at p. 985.) As the

United States Supreme Court recently emphasized in the context of title IX of the

Education Amendments of 1972 (20 U.S.C. 1681 et seq.), “[r]eporting incidents of

discrimination is integral to Title IX enforcement and would be discouraged if

retaliation against those who report went unpunished. Indeed, if retaliation were

not prohibited, Title IX’s enforcement scheme would unravel.” (Jackson v.

Birmingham Board of Education (2005) __ U.S. __ [125 S.Ct. 1497, 1508].) By

the same token, a rule that would allow retaliation against an employee for

opposing conduct the employee reasonably and in good faith believed was


4

As the Seventh Circuit observed with regard to title VII, “[t]he mistake

must, of course, be a sincere one; and presumably it must be reasonable . . . for it
seems unlikely that the framers of Title VII would have wanted to encourage the
filing of utterly baseless charges by preventing employers from disciplining the
employees who made them. But it is good faith and reasonableness, not the fact
of discrimination, that is the critical inquiry in a retaliation case
.” (Rucker v.
Higher Educational Aids Bd
. (7th Cir. 1982) 669 F.2d 1179, 1182, italics added.)

13



discriminatory, whenever the conduct subsequently was found not to violate the

FEHA, would significantly discourage employees from opposing incidents of

discrimination, thereby undermining the fundamental purposes of the

antidiscrimination statutes.

In the present case, in her opposition to L’Oreal’s motion for summary

judgment, Yanowitz presented evidence that she reasonably believed that

Wiswall’s order constituted unlawful sex discrimination, because she thought the

order represented the application of a different standard for female sales associates

than for male sales associates. Yanowitz stated in this regard that she had hired

and supervised both male and female sales associates for a number of years, and

never had been asked to fire a male sales associate because he was not sufficiently

attractive. 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. Courts in other jurisdictions

have uniformly held that an appearance standard that imposes more stringent

appearance requirements on employees of one sex than on employees of the other

sex constitutes unlawful sexual discrimination unless such differential treatment

can be justified as a bona fide occupational qualification. (Frank v. United

Airlines, Inc. (9th Cir. 2000) 216 F.3d 845, 854-855; Gerdom v. Continental

Airlines, Inc. (9th Cir. 1982) 692 F.2d 602, 608 [in bank]; Association of Flight

Attendants v. Ozark Air Lines (N.D. Ill. 1979) 470 F.Supp. 1132, 1135; Laffey v.

Northwest Airlines, Inc. (D.D.C. 1973) 366 F.Supp. 763, 790.) We believe it is

clear that such unjustified disparate treatment also would constitute unlawful sex

discrimination under the FEHA.

14



L’Oreal does not claim that such disparate treatment on the basis of sex is

permissible under the FEHA, but maintains that the evidence presented at the

summary judgment motion was insufficient to support a reasonable belief that

Wiswall’s order represented an instance of impermissible disparate treatment on

the basis of sex. We disagree. Yanowitz presented evidence that Wiswall ordered

her to terminate a female sales associate simply because he felt the associate was

“not good looking enough,” and directed her to “[g]et me someone hot.” On a

subsequent visit to the Macy’s store, when Wiswall discovered Yanowitz had not

terminated the sales associate, he pointed out a young attractive blonde woman

and stated, “God damn it, get me one that looks like that.” Although Yanowitz

repeatedly requested that Wiswall provide her with “adequate justification” for the

dismissal, he failed to respond to the request. As noted, Yanowitz additionally

stated that she had hired and supervised both male and female sales associates for

a number of years, and never had been asked to fire a male sales associate because

he was not sufficiently attractive. 5

Moreover, L’Oreal failed to present any evidence in the summary judgment

proceedings to counter the claim that Wiswall’s order constituted an instance of

disparate treatment on the basis of sex. It introduced no evidence suggesting that

Wiswall’s order was based upon the particular sales associate’s performance or

sales record, or, indeed, that Wiswall had any knowledge of such matters. In

addition, L’Oreal did not establish that the company maintained a general policy


5

Additionally, Yanowitz presented evidence that at the time of Wiswall’s

directive, she was supervising male employees and, notably, that there was a male
sales associate working in a Ralph Lauren installation at another Macy’s store in
Yanowitz’s region.

15



requiring cosmetic sales associates to be physically or sexually attractive, or that

such a policy was routinely applied to both male and female sales associates.6

L’Oreal additionally asserts that Yanowitz’s evidence is insufficient to

support a reasonable belief that Wiswall’s order was discriminatory, because her

belief rests solely on her own subjective experience. Inasmuch as Yanowitz had

been a regional sales manager for many years and presumably was familiar with

the company’s job requirements for sales associates, we believe that a trier of fact

properly could find that, in light of Yanowitz’s experience, her assessment that

Wiswall’s order represented disparate treatment on the basis of the sex of the sales

associate was reasonable. Accordingly, on this record, we conclude that a

reasonable trier of fact could find that Yanowitz reasonably believed that

Wiswall’s order constituted sexual discrimination.

L’Oreal argues, however, that even if Yanowitz refused to follow

Wiswall’s order because she reasonably believed it was discriminatory, the papers

before the trial court on the summary judgment motion failed to demonstrate that

6

Such evidence clearly would have been relevant to the question at issue.

For instance, evidence that Wiswall’s directive implemented an established
company policy or course of conduct would have a bearing both on the
reasonableness of Yanowitz’s belief that discrimination had occurred and on
Wiswall’s understanding that Yanowitz’s refusal to implement his directive was
based on that belief. Had L’Oreal presented evidence that physical attractiveness
was a bona fide occupational qualification for cosmetics sales associates, or that
L’Oreal sales managers were routinely, or even occasionally, required to make
employment decisions on the basis of physical attractiveness, the reasonableness
of Yanowitz’s belief that Wiswall’s order was discriminatory might be
questionable. Moreover, evidence of past practice would bear on Wiswall’s
knowledge, in that it would be unlikely that a reasonable trier of fact would find
that an executive ordering an employee to implement an established, generally
applied and gender-neutral company policy would know that the employee’s
refusal to follow that order was based on a belief that the order was
discriminatory.

16



Yanowitz engaged in protected activity, because the materials failed to

demonstrate that she ever made L’Oreal aware that her refusal to terminate the

sales associate on the basis of her appearance amounted to a protest against

unlawful discrimination. L’Oreal’s position is that Yanowitz cannot be found to

have “opposed” a practice forbidden by the FEHA, within the meaning of

12940(h), because Yanowitz never notified or advised either Wiswall or any other

supervisor that she was refusing to obey the order because she believed the order

violated the FEHA.

By contrast, although Yanowitz acknowledges that she never explicitly

stated to Wiswall that she believed his order was discriminatory, she contends that

in light of the nature of the order and her repeated requests that Wiswall provide

“adequate justification” for that order, there is sufficient evidence from which a

trier of fact could find that Wiswall knew that she had declined to follow the order

because she believed it to be discriminatory, and that under such circumstances

retaliation on the basis of her conduct was forbidden, even if she did not explicitly

tell Wiswall, in so many words, that the order was discriminatory.

We agree with Yanowitz that when the circumstances surrounding an

employee’s conduct are sufficient to establish that an employer knew that an

employee’s refusal to comply with an order was based on the employee’s

reasonable belief that the order is discriminatory, an employer may not avoid the

reach of the FEHA’s antiretaliation provision by relying on the circumstance that

the employee did not explicitly inform the employer that she believed the order

was discriminatory. The relevant portion of section 12940(h) states simply that an

employer may not discriminate against an employee “because the person has

opposed any practices forbidden under this part.” When an employer knows that

the employee’s actions rest on such a basis, the purpose of the antiretaliation

provision is applicable, whether or not the employee has told her employer

17



explicitly and directly that she believes an order is discriminatory. (See Miller v.

Department of Corrections, supra, ___ Cal.4th ___ [pp. 35-39].)

Standing alone, an employee’s unarticulated belief that an employer is

engaging in discrimination will not suffice to establish protected conduct for the

purposes of establishing a prima facie case of retaliation, where there is no

evidence the employer knew that the employee’s opposition was based upon a

reasonable belief that the employer was engaging in discrimination. (See, e.g.,

Garcia-Paz v. Swift Textiles, Inc. (D.Kan. 1995) 873 F.Supp. 547, 559-560

(Garcia-Paz) [holding that employee who champions cause of older worker is not

engaged in protected activity under the Age Discrimination in Employment Act,

even where employee acts out of “an unarticulated belief that the employer is

discriminating on the basis of age. . . unless the activity in question advances

beyond advocacy and into recognizable opposition to an employment practice that

the claimant reasonably believes to be unlawful”].) Although an employee need

not formally file a charge in order to qualify as being engaged in protected

opposing activity, 7 such activity must oppose activity the employee reasonably

believes constitutes unlawful discrimination, and complaints about personal

grievances or vague or conclusory remarks that fail to put an employer on notice

as to what conduct it should investigate will not suffice to establish protected


7

Courts consistently have recognized that in enacting anti-retaliation

provisions, legislators sought to protect a wide range of activity in addition to the
filing of a formal complaint. (See, e.g., EEOC v. Crown Zellerbach Corp. (9th Cir.
1983) 720 F.2d 1008, 1012-1014 [writing letter to customer of employer
complaining about inadequacies in employer’s affirmative action program]; Payne
v. McLemore’s Wholesale & Retail Stores
(5th Cir. 1981) 654 F.2d 1130, 1136-
1137 [boycotting and picketing of store]; Coleman v. Wayne State University
(E.D.Mich. 1987) 664 F.Supp. 1082, 1092 & fn. 5 [stating repeatedly in public
and private that university engaged in discriminatory employment practices].

18



conduct. (See Garcia-Paz at p. 560 [“Employees often do not speak with the

clarity or precision of lawyers. At the same time, however, employers need not

approach every employee’s comment as a riddle, puzzling over the possibility that

it contains a cloaked complaint of discrimination”]; Booker v. Brown &

Williamson Tobacco Co., (6th Cir. 1989) 879 F.2d 1304, 1313-14 [affirming

district court’s determination that an allegation of “ethnocism” was too vague to

constitute protected opposition under Michigan’s antidiscrimination statute].)

Nonetheless, we believe it is clear that “an employee is not required to use

legal terms or buzzwords when opposing discrimination. The court will find

opposing activity if the employee's comments, when read in their totality, oppose

discrimination.” (Wirtz v. Kansas Farm Bureau Services, Inc. (D.Kan. 2003) 274

F.Supp.2d 1198, 1212, fn. omitted.) It is not difficult to envision 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.

As the court explained in Garcia-Paz, in such circumstances “the thrust of

inartful, subtle, or circumspect remarks nevertheless may be perfectly clear to the

employer, and [there is] no evidence that Congress intended to protect only the

impudent or articulate. The relevant question . . . is not whether a formal

accusation of discrimination is made but whether the employee’s communications

to the employer sufficiently convey the employee’s reasonable concerns that the

employer has acted or is acting in an unlawful discriminatory manner.” (Garcia-

Paz, supra, 873 F.Supp. at p. 560.)

Thus, in the present case we must determine whether, on the record before

the trial court on the motion for summary adjudication, a trier of fact properly

could find that Wiswall knew that Yanowitz was objecting repeatedly to the order

because she believed in good faith that it was discriminatory. As noted above,

19



Wiswall on multiple occasions directed Yanowitz to fire a sales associate he

believed was insufficiently attractive, and on one occasion pointed to an attractive

blonde woman while indicating his preference for hiring a sales associate who

looked like her. Yanowitz refused to implement Wiswall’s directive and

repeatedly asked for “adequate justification” for that order. There is no evidence in

the record that Wiswall ever asked Yanowitz to explain her numerous requests for

“adequate justification,” and L’Oreal failed to present any evidence regarding

Wiswall’s understanding or knowledge of Yanowitz’s reasons for refusing to

follow his directive or for demanding “adequate justification” for that directive.

We conclude that, on this record, a trier of fact properly could find that

Wiswall knew that Yanowitz’s refusal to comply with his order to fire the sales

associate was based on Yanowitz’s belief that Wiswall’s order constituted

discrimination on the basis of sex — that is, the application of a different standard

to a female employee than that applied to male employees — and that her

opposition to the directive thus was not merely an unexplained insubordinate act

bearing no relation to suspected discrimination. (See Nelson v. Kansas (D.Kan.

2001) 2001 WL 584436 at p.*7 [fact that plaintiff used the words

“unprofessional” and “disappointing” rather than “discrimination” or “sexual

harassment” in incident report detailing the circumstances of a sexual joke or

conversation “does not alter the fact that the incident report sufficiently conveyed

plaintiff's reasonable concern that defendant engaged in sexual harassment”].) A

trier of fact properly could find that by repeatedly refusing to implement the

directive unless Wiswall provided “adequate justification,” Yanowitz sufficiently

conveyed to Wiswall that she considered the order to be discriminatory and put

him on notice that he should reconsider the order because of its apparent

discriminatory nature.

20



In sum, we conclude that the evidence presented by Yanowitz would

permit — although it certainly would not compel — a reasonable trier of fact to

find that, in view of the nature of Wiswall’s order, Yanowitz’s refusal to

implement the order, coupled with her multiple requests for “adequate

justification,” sufficiently communicated to Wiswall that she believed that his

order was discriminatory. (See Truskoski v. ESPN, Inc. (D.Conn. 1993) 823

F.Supp. 1007, 1012 [holding that complaints about disparate impact of staffing

policy (which had “overtones of gender bias and discrimination”) constituted

protected opposition].) Thus, we conclude that Yanowitz presented sufficient

evidence to satisfy the protected activity element of her prima facie case.

(Mathieu v. Norrell Corp. (2004) 115 Cal. App. 4th 1174, 1187 [triable issue of

fact existed as to whether defendant reasonably understood plaintiff’s complaints

to raise an issue of sexual harassment, thus constituting protected activity under

FEHA].)

B

We turn next to an issue that generally is referred to in the employment

discrimination cases and literature under the rubric of “adverse employment

action.” This term does not appear in the language of the FEHA or in title VII, but

has become a familiar shorthand expression referring to the kind, nature, or degree

of adverse action against an employee that will support a cause of action under a

relevant provision of an employment discrimination statute. (See Power v.

Summers (7th Cir. 2000) 226 F.3d 815, 820.) In the present case, the issue before

us is the appropriate standard for determining whether an employee has been

subjected to an adverse employment action for purposes of a retaliation claim

under the FEHA.

We begin with the relevant statutory language. As already indicated,

section 12940(h) provides in relevant part that it is an unlawful employment

21



practice for an “employer . . . to discharge, expel, or otherwise discriminate

against any person because the person has opposed any practices forbidden under

this part or because the person has filed a complaint, testified, or assisted in any

proceeding under this part.” (Italics added.) The FEHA does not expressly define

“discriminate” or “otherwise discriminate” as used in section 12940(h), but section

12940, subdivision (a) (hereafter section 12940(a)) — the initial and basic

antidiscrimination provision of the FEHA applicable to employers — provides in

somewhat similar fashion that it is an unlawful employment practice for an

“employer, because of the race, religious creed, color, national origin, ancestry,

physical handicap, medical condition, marital status, or sex of any person, to

refuse to hire or employ the person or to refuse to select the person for a training

program leading to employment, or to bar or to discharge the person from

employment or from a training program leading to employment, or to discriminate

against the person in compensation or in terms, conditions or privileges of

employment.” (Italics added.)

L’Oreal contends that the language “or otherwise discriminate” in section

12940(h) reasonably should be interpreted to refer to the same category of adverse

employment measures or sanctions that are set forth in section 12940(a) — that is,

in general terms, discrimination in the “terms, conditions or privileges of

employment.” L’Oreal maintains in this regard that it is most reasonable to

conclude that the Legislature intended to provide a comparable level of protection

to those employees who are discriminated against in retaliation for their opposition

to discriminatory practices as is afforded to those employees who are directly

discriminated against on the basis, for example, of their race or sex, and employed

the term “otherwise discriminate” in section 12940(h) to refer to the category of

discriminatory adverse employment actions set forth in section 12940(a).

22



In contrast, Yanowitz, embracing the position adopted by the Court of

Appeal’s decision in the present case, asserts that because the “otherwise

discriminate” language in section 12940(h) does not contain the descriptive or

limiting language that appears in section 12940(a) referring specifically to

discrimination “in the terms, conditions, or privileges of employment,” section

12940(h) properly should be interpreted to protect employees against a range of

adverse employment actions broader than those that fall within the reach of section

12940(a). Yanowitz urges this court to adopt the standard set forth by the Court of

Appeal, under which an employee may prevail in an action against an employer

for improper retaliation not only when the employee has been subjected to the type

of discrimination in the “terms, conditions, or privileges of employment” that

would support a cause of action under section 12940(a), but also when he or she

has been subjected to any other action “that is reasonably likely to deter

employees from engaging in protected activities” ⎯ that is, activities protected by

section 12940(h).

The standard adopted by the Court of Appeal — the “deterrence

standard” — does not appear unreasonable when one focuses on the purpose or

objective of section 12940(h) viewed in isolation.8 When the provisions of

section 12940 are viewed as a whole, however, we believe it is more reasonable to


8

Under the deterrence standard, a sanction or adverse measure to which an

employee is subjected in retaliation for protected conduct is actionable so long as
the employer’s action is “reasonably likely to deter employees from engaging in
protected activity.” (Ray v. Henderson (9th Cir. 2000) 217 F.3d 1234, 1243)
[adopting the definition of adverse employment action propounded in the Equal
Employment Opportunity Commission’s (EEOC) Compliance Manual, which
interprets an adverse employment action as “ ‘any adverse treatment that is based
on a retaliatory motive and is reasonably likely to deter the charging party or
others from engaging in protected activity.’ ”].)

23



conclude that the Legislature intended to extend a comparable degree of protection

both to employees who are subject to the types of basic forms of discrimination at

which the FEHA is directed — that is, for example, discrimination on the basis of

race or sex — and to employees who are discriminated against in retaliation for

opposing such discrimination, rather than to interpret the statutory scheme as

affording a greater degree of protection against improper retaliation than is

afforded against direct discrimination. (Accord, e.g., Von Gunten v. Maryland

(4th Cir. 2001) 243 F.3d 858, 863, fn. 1 [“ ‘Congress has not expressed a stronger

preference for preventing retaliation under § 2000e-3 than for preventing actual

discrimination under § 2000e-1,’ and ‘[i]n the absence of strong contrary policy

considerations, conformity between the provisions of Title VII is to be

preferred’ ”]; (Richardson v. N.Y. Dep’t of Corr. Serv. (2d Cir. 1999) 180 F.3d

426, 446; Brown v. Brody (D.C. Cir. 1999) 199 F.3d 446, 458.) Accordingly, we

conclude that the term “otherwise discriminate” in section 12940(h) should be

interpreted to refer to and encompass the same forms of adverse employment

activity that is actionable under section 12940(a).9 Although the federal courts’

interpretation of the comparable provisions of title VII is not determinative of the

proper interpretation of the provisions of the FEHA, we note in this regard that the

overwhelming majority of federal courts that have addressed the issue similarly

have concluded that in order to maintain an action under the antiretaliation

provision of title VII, an employee must demonstrate that he or she has been


9

Courts adopting this approach have held that, to be actionable, an

employer’s adverse conduct must materially affect the terms and conditions of
employment. (See Akers v. County of San Diego, supra, 95 Cal.App.4th at
pp.1454-1457; Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507,
510-512. )

24



subjected to an adverse employment action that materially affects the terms,

conditions, or privileges of employment, rather than simply that the employee has

been subjected to an adverse action or treatment that reasonably would deter an

employee from engaging in the protected activity.10


10

The Court of Appeal’s adoption of the deterrence test in the present case

created a conflict with Thomas v. Department of Correction , supra, 77
Cal.App.4th 507, and Akers v. County of San Diego, supra, 95 Cal.App.4th 1441.
The conflict among our Courts of Appeal mirrors the conflict in the federal courts.
(See generally Wiles, Defining Adverse Employment Action In Title VII Claims
For Employer Retaliation: Determining The Most Appropriate Standard
(2001)
27 U. Dayton L. Rev. 217).


The most stringent test, embraced by the Fifth and Eight Circuits, holds that

only “ultimate employment decisions,” such as demotion or discharge, can be the
basis for retaliation claims (Dollis v. Rubin (5th Cir. 1995) 77 F.3d 777, 781-782
[holding that “Title VII was designed to address ultimate employment decisions,
not to address every decision made by employers that arguably might have some
tangential effect upon those ultimate decisions”]; Ledergerber v. Stangler (8th
Cir.1997) 122 F.3d 1142, 1144 [holding that only adverse employment actions
that “rise to the level of an ultimate employment decision [are] intended to be
actionable under Title VII”].)


At the other end of the spectrum is the “deterrence test” adopted by the

Court of Appeal here. As previously noted, this test defines an adverse action as
one that is based on a retaliatory motive and is reasonably likely to deter the
charging party or others from engaging in protected activity. The Ninth Circuit is
the only federal Court of Appeals to adopt this standard. (See Ray v. Henderson,
supra,
217 F.3d 1234, 1243.)


The Tenth and Eleventh Circuits generally have avoided adopting a

uniform standard and instead utilize a case-by-case approach that takes into
account all relevant circumstances in a given case. (See, e.g., Jeffries v. Kansas
(10th Cir. 1998) 147 F.3d 1220, 1232 [explicitly stating that the Tenth Circuit
takes a case-by-case approach to what constitutes adverse employment action, and
expressly rejecting any requirement that an employer’s action be “material” to the
terms and conditions of employment in order to be actionable]; Wideman v. Wal-
Mart Stores, Inc
. (11th Cir. 1998) 141 F.3d 1453, 1456 [finding that written
reprimands, an employer’s solicitation of negative comments by coworkers, and a
one-day suspension constituted adverse employment actions].)


Courts in the First and Third Circuits also have taken a broad view of the

(Footnote continued on next page.)

25



Although Yanowitz argues that our adoption of the foregoing conclusion —

that is, interpreting section 12940(h) as affording those employees who engage in

protected activities protection against only the same range of adverse employment

actions that are prohibited by section 12940(a) — will leave such employees with

an inadequate degree of protection and vulnerable to a broad range of retaliatory

measures, we believe this argument rests, at least in part, on an unduly narrow

view of the type of adverse employment actions that are forbidden by section

12940(a). Retaliation claims are inherently fact specific, and the impact of an

employer’s action in a particular case must be evaluated in context. Accordingly,

although an adverse employment action must materially affect the terms,

conditions, or privileges of employment to be actionable, the determination of

whether a particular action or course of conduct rises to the level of actionable



(Footnote continued from previous page.)

type of activity that constitutes adverse employment action but have required that
the adverse action alter the terms, conditions, or privileges of employment. (See,
e.g., Randlett v. Shalala (1st Cir. 1997) 118 F.3d 857, 862 [incorporating by
reference the “terms, conditions and privileges of employment” qualifier in title
VII’s general discrimination provision into the adverse action determination in a
title VII retaliation claim]; Robinson v. City of Pittsburgh (3d Cir.1997)120 F.3d
1286, 1300 [“retaliatory conduct must be serious and tangible enough to alter an
employee’s compensation, terms, conditions, or privileges of employment . . . to
constitute [an] ‘adverse employment action.’ ”)


Finally, the remaining circuits expressly have adopted the materiality

standard, which holds that a retaliation claim lies only for an employment action
that materially affects the terms and conditions of employment. (See, e.g., Torres
v. Pisano
(2nd Cir.1997)116 F.3d 625, 640 [to show an adverse employment
action employee must demonstrate “a materially adverse change in the terms and
conditions of employment”]; Nguyen v. Cleveland (6th Cir. 2000) 229 F.3d 559,
566; Von Gunten v. Maryland, supra, 243 F.3d 858; Ribando v. United Airlines,
Inc
. (7th Cir. 1999) 200 F.3d 507, 510-511; Brown v. Brody, supra, 199 F.3d at
p. 457.)

26



conduct should take into account the unique circumstances of the affected

employee as well as the workplace context of the claim.11

As the United States Supreme Court recognized in interpreting and

applying the provisions of title VII in Harris v. Forklift Sys., Inc. (1993) 510 U.S.

17, the statutory language protecting employees against racial or sexual

discrimination in compensation or in the terms, conditions, or privileges of

employment is not limited to adverse employment actions that impose an

economic detriment or inflict a tangible psychological injury upon an employee.

In Harris (a sexual harassment case), after quoting the language of title VII (42

U.S.C. 2000e-§ 2(a)(1)) making it an unlawful employment practice “ ‘to

discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment,’ ” the high court went on to explain that

“this language ‘is not limited to “economic” or “tangible” discrimination. The

phrase “terms, conditions, or privileges of employment” evinces a congressional

intent “to strike at the entire spectrum of disparate treatment of men and women”

in employment,’ which includes requiring people to work in a discriminatorily

hostile or abusive environment. [Citations.] When the workplace is permeated

with ‘discriminatory intimidation, ridicule, and insult’ [citation] that is

‘sufficiently severe or pervasive to alter the conditions of the victim’s employment

and create an abusive working environment’ [citation], Title VII is violated. This

standard, which we reaffirm today, takes a middle path between making

actionable any conduct that is merely offensive and requiring the conduct to cause

a tangible psychological injury. As we pointed out in Meritor [Sav. Bank, FSB v.


11

Moreover, as we discuss in detail, post, considering an employer’s actions

in context comports with our conclusion that it is appropriate to consider
plaintiff’s allegations collectively under a totality of the circumstances approach.

27



Vinson (1986) 477 U.S. 57, 67], ‘mere utterance of an . . . epithet which engenders

offensive feelings in an employee,’ . . . does not sufficiently affect the conditions

of employment to implicate Title VII. . . . [¶] But Title VII comes into play

before the harassing conduct leads to a nervous breakdown. A discriminatorily

abusive work environment, even one that does not seriously affect employees’

psychological well-being, can and often will detract from employees’ job

performance, discourage employees from remaining on the job, or keep them from

advancing in their careers. . . . [¶] . . . Certainly Title VII bars conduct that

would seriously affect a reasonable person’s psychological well-being, but the

statute is not limited to such conduct. So long as the environment would

reasonably be perceived, and is perceived, as hostile or abusive [citation], there is

no need for it also to be psychologically injurious. [¶] This is not, and by its

nature cannot be, a mathematically precise test. We need not answer today all the

potential questions it raises . . . . But we can say that whether an environment is

‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.

These may include the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere offensive utterance;

and whether it unreasonably interferes with an employee’s work performance.

The effect on the employee’s well-being is, of course, relevant to determining

whether the plaintiff actually found the environment abusive. But while

psychological harm, like any other relevant factor, may be taken into account, no

single factor is required.” (Harris, supra, 510 U.S. at pp. 21-23, fns. omitted,

italics added.)

As the high court concluded in Harris with respect to the comparable

language embodied in Title VII, we believe that the language in section 12940(a)

making it an unlawful employment practice for an employer to discriminate

against an employee on the basis of race, sex, or the other enumerated

28



characteristics “in compensation or in the terms, conditions, and privileges of

employment” properly must be interpreted broadly to further the fundamental

antidiscrimination purposes of the FEHA.12 Appropriately viewed, this provision

protects an employee against unlawful discrimination with respect not only to so-

called “ultimate employment actions” such as termination or demotion, but also

the entire spectrum of employment actions that are reasonably likely to adversely

and materially affect an employee’s job performance or opportunity for

advancement in his or her career. Although a mere offensive utterance or even a

pattern of social slights by either the employer or co-employees cannot properly

be viewed as materially affecting the terms, conditions, or privileges of

employment for purposes of section 12940(a) (or give rise to a claim under section

12940(h)),13 the phrase “terms, conditions, or privileges” of employment must be


12 Although

Harris was a sexual harassment case, the high court’s reasoning

applies with equal vigor in the retaliation context. Indeed, in Noviello v. City of
Boston
(1st Cir. 2005) 398 F.3d 76, the First Circuit recently concluded that a
hostile work environment can constitute a retaliatory adverse employment action
under both title VII and under analogous Massachusetts state law. (Id. at p. 89).
The court characterized this approach as the “majority view” under federal law.
(See ibid. and cases cited therein.)

13

See, e.g., Torres v. Pisano, supra, 116 F.3d at p. 640 (fact that acts left

employee feeling “frightened” and “humiliated” failed to establish that employee
suffered an adverse employment action); Ruggieri v. Harrington (E.D.N.Y. 2001)
146 F.Supp.2d 202, 216 (circumstance that plaintiff was embarrassed by
employer’s actions inadequate to demonstrate adverse employment action);
Flaherty v. Gas Research Inst. (7th Cir. 1994) 31 F.3d 451, 457 (plaintiff’s
“bruised ego” as a result of transfer that plaintiff found “personally humiliating”
insufficient to constitute adverse employment action); Welsh v. Derwinski (1st Cir.
1994)14 F.3d 85, 86 (recognizing that “not every unpleasant matter . . . creates a
cause of action” under title VII); Brooks v. City of San Mateo (9th Cir. 2000) 229
F.3d 917, 929 (“[b]ecause an employer cannot force employees to socialize with
one another, ostracism suffered at the hands of coworkers cannot constitute an
adverse employment action”); Strother v. Southern Cal. Permanente Medical

(Footnote continued on next page.)

29



interpreted liberally and with a reasonable appreciation of the realities of the

workplace in order to afford employees the appropriate and generous protection

against employment discrimination that the FEHA was intended to provide.14

As the high court recognized in Harris, the determination of what type of

adverse treatment properly should be considered discrimination in the terms,

conditions, or privileges of employment is not, by its nature, susceptible to a

mathematically precise test, and the significance of particular types of adverse

actions must be evaluated by taking into account the legitimate interests of both

the employer and the employee. Minor or relatively trivial adverse actions or

conduct by employers or fellow employees that, from an objective perspective, are

reasonably likely to do no more than anger or upset an employee cannot properly

be viewed as materially affecting the terms, conditions, or privileges of

employment and are not actionable, but adverse treatment that is reasonably likely

to impair a reasonable employee’s job performance or prospects for advancement



(Footnote continued from previous page.)

Group
(9th Cir. 1996) 79 F.3d 859, 869 (mere ostracism in the workplace is
insufficient to establish an adverse employment decision).

14

The FEHA advances the fundamental public policy of eliminating

discrimination in the workplace, and the provisions of the act are to be construed
broadly and liberally in order to accomplish its purposes. (§ 12933, subd. (a)).
Indeed, as we have stated, a “policy that promotes the right to seek and hold
employment free of prejudice is fundamental. Job discrimination ‘foments
domestic strife and unrest, deprives the state of the fullest utilization of its
capacities for development and advance, and substantially and adversely affects
the interest of employees, employers, and the public in general.’ [Quoting
§ 12920.] The statute’s aim is to provide effective remedies against this evil.”
(Commodore Home Systems, Inc. v. Superior Court of San Bernardino County
(1982) 32 Cal.3d 211, 220)

30



or promotion falls within the reach of the antidiscrimination provisions of sections

12940(a) and 12940(h).15

III.

In light of the foregoing conclusions, we turn to the specific employer acts

here at issue. Yanowitz contends that the following activity constitutes adverse

employment actions for purposes of her prima facie claim: (1) unwarranted

negative performance evaluations (specifically, Roderick’s July 16, 1998 memo

criticizing Yanowitz); (2) L’Oreal’s refusal to allow Yanowitz to respond to the

allegedly unwarranted criticism, by insisting on the July 22, 1998 meeting despite

Yanowitz’s request to postpone the meeting to allow her to prepare a defense to

the charges; (3) unwarranted criticism voiced by Roderick in the presence of

Yanowitz’s associates and other employees on May 13, 1998, and the

“humiliating” public reprobation by Wiswall on June 11, 1998; (4) refusing

Yanowitz’s request to provide necessary resources and assistance to Christine

DeGracia (sometime after May 13, 1998), thereby allegedly fueling the employee

resentment for which Yanowitz was chastised in her performance reviews; and

(5) Roderick’s solicitation of negative feedback from Yanowitz’s staff in April

1998.

As a threshold matter, we need not and do not decide whether each alleged

retaliatory act constitutes an adverse employment action in and of itself. Yanowitz

15 See,

e.g.,

Wyatt v. City of Boston (1st Cir. 1994) 35 F.3d 13, 15-16 (stating

that actions other than discharge are covered by title VII’s antiretaliation provision
and listing, as examples, “employer actions such as demotions, disadvantageous
transfers or assignments, refusals to promote, unwarranted negative job
evaluations and toleration of harassment by other employees”); Wideman v. Wal-
Mart Stores, Inc
., supra, 141 F.3d 1453, 1456 (finding that written reprimands, an
employer’s solicitation of negative comments by co-workers, and a one-day
suspension constituted adverse employment actions).

31



has alleged that L’Oreal’s actions formed a pattern of systematic retaliation for her

opposition to Wiswall’s discriminatory directive. Contrary to L’Oreal’s assertion

that it is improper to consider collectively the alleged retaliatory acts, there is no

requirement that an employer’s retaliatory acts constitute one swift blow, rather

than a series of subtle, yet damaging, injuries. (See, e.g., Bass v. Board of County

Com'rs, Orange County, Fla. (11th Cir. 2001) 256 F.3d 1095, 1118 [retaliatory

actions that did not deprive plaintiff of compensation and may not have

individually constituted adverse employment actions were, when viewed

collectively, actionable]; Wideman v. Wal-Mart Stores, Inc., supra, 141 F.3d at

p. 1456 [“It is enough to conclude, as we do, that the actions about which

Wideman complains considered collectively are sufficient to constitute prohibited

[retaliation]. We need not and do not decide whether anything less than the totality

of the alleged reprisals would be sufficient”].) Enforcing a requirement that each

act separately constitute an adverse employment action would subvert the purpose

and intent of the statute.16


16

Nor is there any merit in L’Oreal’s contention that viewing the allegedly

retaliatory acts collectively is improper because such an approach conflates the
difference between discrimination or retaliation claims and hostile environment
claims. (See Kim v. Nash Finch Co. (8th Cir. 1997) 123 F.3d 1046, 1060 [holding
that reduction of duties, disciplinary action, and negative personnel reports, as
well as required remedial training, constituted adverse employment actions and
refusing to decide whether each alleged retaliatory act by itself constituted adverse
action, because plaintiff “essentially claimed that [his employer] had
systematically retaliated against him ⎯ that is, that all the acts were taken in
response to his filing the employment discrimination charge and thus were
connected to one another”].) Moreover, “workplace harassment, if sufficiently
severe or pervasive, may in and of itself constitute an adverse employment action
sufficient to satisfy the second prong of the prima facie case for . . . retaliation
cases.” (Noviello v. City of Boston, supra, 398 F.3d at p. 90.)

32



It is therefore appropriate that we consider plaintiff’s allegations

collectively. L’Oreal additionally argues, however, that in any event we may not

consider the full range of acts, because only acts that occurred within one year

prior to the filing of Yanowitz’s claim with the DFEH — that is, within one year

prior to June 25, 1999 — are actionable and the remaining acts are barred by the

statute of limitations. L’Oreal urges us to apply the statute of limitations strictly

and limit Yanowitz’s claims to only those acts that occurred one year or less

before she filed her DFEH claim ⎯ namely, Roderick’s July 16, 1998

memorandum, the refusal to give Yanowitz additional time to respond to that

memorandum, and the July 22, 1998 meeting. Conversely, Yanowitz urges us to

apply the continuing violation doctrine we recently discussed in Richards, supra,

26 Cal.4th 798. Under that doctrine, an employer is liable for actions that take

place outside the limitations period if these actions are sufficiently linked to

unlawful conduct that occurred within the limitations period. (Id. at p.812).

In Richards, we applied the continuing violation doctrine to a plaintiff’s

disability accommodation and disability harassment claims under the FEHA,

reasoning that the FEHA statute of limitations should not be interpreted to force

upon a disabled employee engaged in the process of seeking reasonable

accommodation or ending disability harassment the unappealing choice of

resigning at the first sign of discrimination or, on the other hand, persisting in the

reconciliation process and possibly forfeiting a valid claim should that process

prove unsuccessful. (Id. at p. 821). Thus, we held that when an employer

unlawfully refuses reasonable accommodation of a disabled employee or engages

in disability harassment, the statute of limitations begins to run either “when the

course of conduct is brought to an end, as by the employer’s cessation of such

conduct or by the employee’s resignation, or when the employee is on notice that

further efforts to end the unlawful conduct will be in vain.” (Id. at p. 823).

33



Subsequent to our decision in Richards, the United States Supreme Court

decided National Railroad Passenger Corp. v. Morgan (2002) 536 U.S. 101

(Morgan), where the court held that, with regard to the applicability of the

continuing violations doctrine, a distinction should be drawn between

discrimination and retaliation claims on the one hand, and hostile work

environment claims on the other hand. The court in Morgan reasoned that

because title VII’s definition of “unlawful employment practices” includes many

discrete acts but does not indicate that the term “practice” converts related discrete

acts into a single unlawful practice for timely filing purposes, discrete

discriminatory acts are not actionable if time-barred, even when they are related to

acts alleged in timely filed charges. (Id. at pp. 110-113). The court further stated

that hostile work environment claims, by contrast, by their very nature involve

repeated conduct and thus cannot be said to occur on any particular day. Because

a harassment claim is composed of a series of separate acts that collectively

constitute one “unlawful employment practice,” the court in Morgan concluded

that it does not matter that some of the component parts fall outside the statutory

time period. (Id. at pp. 116-118).

L’Oreal urges us to adopt Morgan’s reasoning and limit the continuing

violation doctrine to only harassment claims, thus excluding discrimination and

retaliation claims. A rule categorically barring application of the continuing

violation doctrine in retaliation cases, however, would mark a significant

departure from the reasoning and underlying policy rationale of our previous cases

interpreting the FEHA statute of limitations. In Richards, we recognized that such

a strict approach to the statute of limitations could encourage early litigation, and

that in order to minimize the filing of unripe lawsuits and to promote the

conciliatory resolution of claims, the FEHA statute of limitations should be

interpreted liberally to allow employers and employees an opportunity to resolve

34



disputes informally. (See Richards, supra, 26 Cal.4th at p.819, citing Romano v.

Rockwell Internat. Inc. (1996) 14 Cal.4th 479, 493-494 (Romano)). In our earlier

decision in Romano, supra, these same policy concerns critically informed our

decision that a FEHA action for discriminatory discharge does not commence until

the actual discharge, not the time the employee was notified that he or she would

be discharged. (Romano, supra, 14 Cal.4th at pp.494-495.)

Nothing in Richards or Romano limited application of these principles to

only harassment claims, rather than discrimination or retaliation claims. (See

Birschtein v. New United Motor Mfg., Inc. (2002) 92 Cal.App.4th 994, 1004

[remarking that in Richards, the “foundation of the court’s rationale supporting

application of the continuing violation doctrine in FEHA discrimination litigation

is not so much accommodation itself as a process of conciliation”].) Indeed, in

Richards, we expressly applied the continuing violation doctrine to the plaintiff’s

disability discrimination claim, as well as to her disability harassment claim.

Thus, we already have recognized that when the requisite showing of a temporally

related and continuous course of conduct has been established, it is appropriate to

apply the continuing violations doctrine to disability accommodation claims, as

well as to harassment claims.17

Indeed, an examination of the facts of the instant case illustrates why a

categorical bar on the application of the continuing violations doctrine in the


17

Moreover, as we previously have stressed, the liberal construction

mandated by the FEHA extends to interpretations of the FEHA’s statute of
limitations: “In order to carry out the purpose of the FEHA to safeguard the
employee’s right to hold employment without experiencing discrimination, the
limitations period set out in the FEHA should be interpreted so as to promote the
resolution of potentially meritorious claims on the merits.” (Richards, supra, 26
Cal.4th at p. 819, citing Romano, supra, 14 Cal.4th at pp. 493-494.)

35



retaliation context is incompatible with our previous pronouncements in this area.

Here, the plaintiff alleges a retaliatory course of conduct rather than a discrete act

of retaliation, and as we concluded above, a series of separate retaliatory acts

collectively may constitute an “adverse employment action” even if some or all of

the component acts might not be individually actionable. If, however, we were to

foreclose application of the continuing violations doctrine as a matter of law in

retaliation cases, the statute of limitations would start running upon the happening

of the first act of retaliation, even if that act would not be actionable standing

alone. A rule that would force employees to bring actions for “discrete acts” of

retaliation that have not yet become ripe for adjudication, and that the employee

may not yet recognize as part of a pattern of retaliation, is fundamentally

incompatible with the twin policy goals of encouraging informal resolution of

disputes and avoiding premature lawsuits that critically informed our analysis in

Richards and Romano.18


18

To the extent Morgan holds otherwise, we decline to adopt its reasoning.

Unlike our cases, Morgan appears to give no weight to the impact of a statute of
limitations on informal conciliation processes. Moreover, we note that the factual
posture of the present case demonstrates a flaw in the reasoning of Morgan, which
barred application of the continuing violations doctrine for discrimination and
retaliation claims because those claims were founded on “discrete acts.” As noted
above, here Yanowitz alleges a retaliatory course of conduct premised on a series
of interrelated retaliatory acts that, when considered collectively, constitute an
adverse employment action. Morgan concluded that because a harassment claim
is composed of a series of separate acts that collectively constitute one “unlawful
employment practice,” a plaintiff may assert individual components from the pre-
limitations period as part of the continuing violation. (Morgan, supra, 536 U.S. at
pp. 116-118.) Thus, because the facts alleged here, like the harassment claims
discussed in Morgan, collectively constitute an unlawful employment practice, the
analytical distinction that Morgan purported to draw between retaliation and
harassment claims is unpersuasive.

36



Accordingly, foreclosing the application of the continuing violation

doctrine in a case such as this one, where the plaintiff alleges a retaliatory course

of conduct rather than a discrete act of retaliation, would undermine the

fundamental purpose of the FEHA by encouraging early litigation and the

adjudication of unripe claims. We believe the better rule is to allow application of

the continuing violations doctrine in retaliation cases if the requisite showing of a

continuing course of conduct has been made. Thus, we reiterate that in a

retaliation case, as in a disability accommodation or harassment case, the FEHA

statute of limitations begins to run when an alleged adverse employment action

acquires some degree of permanence or finality. (Richards, supra, 26 Cal.4th at

p. 823.)

Turning to the applicability of the doctrine in the present case, we apply the

factors outlined in Richards. Specifically, we consider whether “the employer’s

actions were (1) sufficiently similar in kind ⎯ recognizing, as this case illustrates,

that similar kinds of unlawful employer conduct, such as acts of harassment or

failures to reasonably accommodate disability, may take a number of different

forms [Citation]; (2) have occurred with reasonable frequency; (3) and have not

acquired a degree of permanence.” (Richards, supra, 26 Cal.4th at p. 823.)19

Here, Yanowitz contends that in retaliation for her refusal to follow Wiswall’s

discriminatory directives in the fall of 1997, L’Oreal began a campaign of

retaliation that commenced with the solicitation of negative feedback from


19

We also noted that “permanence” properly should be understood to mean

“that an employer’s statements and actions make clear to a reasonable employee
that any further efforts at informal conciliation to obtain reasonable
accommodation or end harassment will be futile.” (Richards, supra, 26 Cal.4th at
p. 823.)

37



Yanowitz’s subordinates in April 1998, continued with a refusal to accommodate

those employees’ administrative needs in May 1998, the presentation of

unwarranted criticism and humiliation in the presence of these employees in June

1998, and an unwarranted negative written evaluation in a July 16, 1998

memorandum, and finally culminated with L’Oreal’s refusal, after the transmittal

of the July 16 memorandum, to allow Yanowitz time to respond to the charges

leveled against her.

In sum, Yanowitz alleges that in the course of these actions, L’Oreal

solicited or fabricated negative information about Yanowitz and then used this

information to intimidate, disempower, and punish Yanowitz. We conclude that a

reasonable trier of fact could find that the solicitation of negative information from

subordinates, the criticism of Yanowitz both verbally and in written memos based

in part on the negative information obtained from her subordinates, and the

subsequent refusal to allow Yanowitz to answer the charges leveled against her,

were similar in kind and occurred with sufficient frequency to constitute a

continuous and temporally related course of conduct. Moreover, a reasonable trier

of fact could conclude Yanowitz was not on notice that further conciliatory efforts

would be futile, until her final attempts to meet with company representatives to

discuss the criticism directed at her were finally rebuffed. Accordingly, in light of

the evidence submitted by the parties at the summary adjudication stage, we

cannot determine that the continuing violation doctrine is inapplicable as a matter

of law. (Richards, supra, 26 Cal.4th at p. 823.)

Furthermore, with regard to the question whether L’Oreal’s alleged acts of

retaliation, considered collectively, constitute a sufficient adverse employment

action under the relevant standard (materially affecting the terms, conditions, or

privileges of employment), we conclude that Yanowitz has met her burden of

establishing an adverse employment action for purposes of her prima facie case.

38



The record establishes that prior to the period relevant here, Yanowitz had been a

highly rated and honored employee of L’Oreal for 18 years. In April 1998,

however, her supervisors Roderick and Wiswall began to actively solicit negative

information about her and then employed this information to criticize Yanowitz

both in the presence of her subordinates and in written memoranda. These

supervisors refused to review her response to these charges and employed the

negative information received to justify new, restrictive directives regarding her

future performance and to impair her effectiveness with her staff.

These actions constituted more than mere inconveniences or insignificant

changes in job responsibilities. Months of unwarranted and public criticism of a

previously honored employee, an implied threat of termination, contacts with

subordinates that only could have the effect of undermining a manager’s

effectiveness, and new regulation of the manner in which the manager oversaw her

territory did more than inconvenience Yanowitz. Such actions, which for

purposes of this discussion we must assume were unjustified and were meant to

punish Yanowitz for her failure to carry out her supervisor’s order, placed her

career in jeopardy. Indeed, Roderick so much as told Yanowitz that unless there

were immediate changes, her career at L’Oreal was over. Actions that threaten to

derail an employee’s career are objectively adverse, and the evidence presented

here creates a factual dispute that cannot be resolved at the summary judgment

stage. (See Noviello v. City of Boston, supra, 398 F.3d 76 [analysis of effect of

retaliatory conduct should include “the relative ubiquity of the retaliatory conduct,

its severity, its natural tendency to humiliate . . . a reasonable person, and its

capacity to interfere with the plaintiff’s work performance.”].)

Contrary to L’Oreal’s assertion, this is not a case in which the plaintiff

alleges merely commonplace indignities typical of the workplace. Yanowitz

alleges a pattern of systematic retaliation, and numerous cases recognize that

39



adverse employment action includes treatment similar to that here at issue. (See,

e.g., Wyatt v. City of Boston, supra, 35 F.3d at pp. 15-16 [stating that actions

other than discharge are covered by title VII’s antiretaliation provision, and listing

as examples “employer actions such as demotions, disadvantageous transfers or

assignments, refusals to promote, unwarranted negative job evaluations and

toleration of harassment by other employees”]; Gunnell v. Utah Valley State

College (10th Cir.1998) 152 F.3d 1253, 1264 [holding that coworker hostility or

retaliatory harassment, if sufficiently severe, can constitute adverse employment

action for purposes of a title VII retaliation claim]; Wideman v. Wal-Mart Stores,

Inc., supra, 141 F.3d 1453, 1456 [finding that written reprimands, an employer’s

solicitation of negative comments by coworkers, and a one-day suspension

constituted adverse employment actions]; Corneveaux v. CUNA Mut. Ins. Group

(10th Cir. 1997) 76 F.3d 1498, 1507-1508 [holding that an adverse employment

action occurred when an employee was required to “go through several hoops” in

order to obtain severance benefits]; Yartzoff v. Thomas (9th Cir. 1987) 809 F.2d

1371, 1376 [“[t]ransfers of job duties and undeserved performance ratings, if

proven, would constitute ‘adverse employment decisions’ ”].)

We emphasize that we do not determine that the alleged adverse action

occurred, or that it was not justified by bona fide concerns on the part of L’Oreal

with regard to Yanowitz’s general performance at work that might yet be proved

at trial. We hold only that, at the summary adjudication stage, Yanowitz's evidence

was sufficient to satisfy the adverse action element of her prima facie case. It

remains for the trier of fact to decide whether Yanowitz’s allegations are true.

IV.

Finally, L’Oreal argues that the Court of Appeal erred in holding that

Yanowitz met her burden of establishing that L’Oreal’s stated nonretaliatory

grounds for taking the actions against her were pretextual. L’Oreal points to an

40



August 5, 1997 memo from Roderick to Sears — written months before the

incident with Wiswall — that severely criticized Yanowitz for deficiencies in her

“listening” skills and her “attitude,” and to Yanowitz’s admission that the

November 1997 merger created problems in her department and left her with

additional job responsibilities that may have had an impact on her performance.

L’Oreal additionally proffered evidence that it had received complaints about

Yanowitz from customers before and after the incidents with Wiswall and that

these complaints expressed negative feedback about Yanowitz, including an

expressed desire by certain corporate customers not to work with Yanowitz again.

The evidence proffered by L’Oreal does indicate that there were problems

with Yanowitz’s performance both before and after the incident with Wiswall, but

such evidence is not sufficient in itself to support the trial court’s grant of

summary judgment in L’Oreal’s favor. The record reflects that many of the

problems identified in the negative performance reviews had been associated with

Yanowitz in a number of performance reviews conducted between 1987 and 1996.

Despite these criticisms, however, these same performance reviews consistently

rated Yanowitz “above expectation,” and in 1997 ⎯ the year before the incidents

here at issue ⎯ Yanowitz was awarded the sales manager of the year award.

Moreover, there is no evidence that at the time of these earlier negative

evaluations, L’Oreal actively solicited negative feedback about Yanowitz, berated

her in the presence of her staff, or threatened to terminate her unless her

performance improved. Roderick’s active solicitation of negative information

concerning Yanowitz in the spring of 1998 strongly suggests the possibility that

her employer was engaged in a search for a pretextual basis for discipline, which

in turn suggests that the subsequent discipline imposed was for purposes of

retaliation. (See Lindemann & Grossman, Employment Discrimination Law (3d

ed. 1996) 674-675.)

41



Thus, we conclude that the record reveals triable issues of fact as to

whether L’Oreal’s heightened response to Yanowitz’s allegedly poor

performance ⎯ after she refused to follow Wiswall’s directive ⎯ was retaliation

for her protected activity under the FEHA. (Hairston v. The Gainesville Sun

Publishing Co. (11th Cir. 1993) 9 F.3d 913, 921 [reversing summary judgment on

the ground of pretext and finding that when the plaintiff presented evidence of

above average performance evaluations before the filing of a complaint, and

unfavorable performance evaluations immediately before and after the filing of a

complaint, incidents of increased scrutiny and harassment bear on the pretext

issue].) Taking into account all of the evidence submitted in support of and in

opposition to the summary judgment motion, there exists a genuine issue of

material fact as to whether L’Oreal’s articulated, nonretaliatory reasons for its

actions were pretextual. Therefore, the Court of Appeal properly held that the trial

court’s grant of summary judgment in favor of L’Oreal cannot be sustained on this

ground.

V.

For the reasons stated above, we affirm the Court of Appeal’s decision

reversing the trial court’s grant of summary judgment in favor of L’Oreal.

GEORGE, C.J.

WE CONCUR:

KENNARD, J.
WERDEGAR, J.
MORENO, J.

42












DISSENTING OPINION BY CHIN, J.




I dissent.

Plaintiff alleges she was subjected to adverse employment actions due to

her opposition to a personnel order that, she now claims, she believed constituted

unlawful discrimination on the basis of sex. She seeks the protection of a statute

that prohibits retaliation against a person who opposes a forbidden employment

practice. However, until after she filed this lawsuit, she never communicated to

her employer her alleged belief that the order was sexually discriminatory or,

indeed, unlawful in any way. This case thus presents the question whether a

person can be a whistleblower without blowing the whistle. At least in this case,

where the personnel order was not clearly unlawful, I would say no.

The majority concludes that plaintiff may recover damages from her

employer for retaliating against her because she failed to carry out a personnel

order that she reasonably believed violated the California Fair Employment and

Housing Act (FEHA) (Gov. Code, § 12900 et seq.) even if (1) the order did not, in

fact, violate the FEHA; and (2) she never related her belief to her employer. I

disagree. The whole point behind giving whistleblowers special protection is to

encourage them to speak out to try to prevent employment discrimination before it

takes place or to expose it after it occurs. It makes no sense to give this special

protection to someone, like plaintiff here, who did nothing (until after she filed a

1



lawsuit) to communicate to her employer that she opposed what she believed to be

a discriminatory act.

The trial court properly granted summary judgment in favor of defendant.

I. SUMMARY OF RELEVANT FACTS

Plaintiff Elysa J. Yanowitz alleges the following. She was a regional sales

manager based in San Francisco for defendant L’Oreal USA, Inc. (L’Oreal).

Sometime during the fall of 1997, Jack Wiswall, the New York-based general

manager of L’Oreal’s designer fragrance division and one of Yanowitz’s superiors

within the company, ordered her to terminate a female salesperson because he

thought she was “not good looking enough.” In her declaration, plaintiff

described the salesperson as a “dark-skinned woman” who she believed was “of

Iranian descent.” Wiswall told her something like, “Get me somebody hot.”

Plaintiff did not carry out the order because she believed it was unlawful.

In a declaration that she prepared for this litigation, she explained the reasons for

her belief: “This 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. And there never was any suggestion that any of the males who were

under my supervision should be hired, evaluated, promoted, or fired because of

their physical appearances. At the time that Wiswall gave the instruction, there

was a male sales associate in Cosmair’s [L’Oreal’s former name] Ralph Lauren

installation in Macy’s San Francisco Union Square Branch. I also had a male

account executive in Seattle, Washington, and until recently, or conceivably even

at that time, I had a male coordinator in Macy’s San Francisco Union Square

Branch. In earlier years, I had had two other male account executives. I had hired

one of these individuals as a coordinator and later promoted him to an account

executive. And shortly before I went out on disability leave, I had made a job

2



offer to another male for a coordinator’s position, as I recall, in Macy’s Union

Square Branch.” Because of these facts, she “believed that it was contrary to both

federal and state sex discrimination laws to terminate a female employee who was

performing satisfactorily and who presented herself in a businesslike fashion

because of the subjective belief of a male corporate officer that the woman did not

fit his notions of physical attractiveness, when opinions as to the physical

attractiveness of male employees never were taken into consideration in

connection with any employment decisions.”

Sometime later, when Wiswall learned that the employee had not been

dismissed, he told plaintiff something like, “Didn’t I tell you to get rid of her, I

want her out of here.” He observed a “young attractive blonde girl, very sexy,”

and told plaintiff to “get me one that looks that.” She responded, “Jack, you’ve

got to give me adequate reasons or justification for dismissing her.” In her

declaration, plaintiff states, “After the initial directive, Wiswall persisted in

questioning me whether [the salesperson] had been terminated or when I would

terminate her. I protested to Wiswall on a number of occasions that he had to give

me a justifiable reason to terminate this employee. The matter became particularly

difficult when . . . in March 1998, I learned that [the salesperson] was one of the

top performers in the men’s fragrance department throughout the entire chain.”

When asked specific questions during her deposition regarding the number of

times she spoke with Wiswall on this subject, she could remember only the initial

directive and a single follow-up conversation. She could not specifically

remember additional conversations with Wiswall on the subject.

Plaintiff did not say anything to Wiswall to convey that she felt the order

was discriminatory other than asking him to give her “adequate grounds to dismiss

her.” She does not allege that she told Wiswall that the salesperson in question

was a top performer. She never reported to Richard Roderick, her immediate

3



supervisor within the company, or anyone else within the company, including the

human resources department, that she believed she had received a discriminatory

order from Wiswall. She explained in her declaration that she said nothing to

Roderick about her concerns because she “did not have any confidence that

Roderick would say, much less do, anything. I found Roderick to be totally

ineffectual and lacking independence.” Moreover, she “did not report Wiswall to

or seek assistance from [the] Human Resources Department, because I did not

have any confidence that that Department would provide any assistance in dealing

with Wiswall. That Department did not have the reputation of assisting lower

level employees or even middle management personnel in disputes involving

upper management.”

Ultimately, plaintiff did not terminate the salesperson and, apparently, no

one else did either. L’Oreal also did not terminate or demote plaintiff, but she

alleges that, as a result of her not terminating the salesperson, she was subjected to

other adverse employment actions. She eventually departed the company on

disability leave due to stress.

In this action, plaintiff alleged, among other things, that she was the victim

of discriminatory retaliation due to her refusal to carry out the order to fire the

female employee, an order that, she believed, would have violated “the prohibition

against discrimination by sex established in the” FEHA. The trial court granted

L’Oreal’s motion for summary judgment, but the Court of Appeal reversed as to

the retaliation cause of action. We granted L’Oreal’s petition for review and must

now decide whether the facts of this case state a valid cause of action for unlawful

retaliation under the FEHA.

4



II. DISCUSSION

A. Prima Facie Case of Retaliation

Plaintiff claims L’Oreal illegally retaliated against her in violation of

Government Code section 12940, subdivision (h) (section 12940(h)), part of the

FEHA, which makes it an unlawful employment practice for an employer to

“discriminate against any person because the person has opposed any practices

forbidden under” the FEHA. She claims L’Oreal retaliated against her because

she opposed Wiswall’s order to fire the female sales representative. She alleges

this retaliation constituted unlawful discrimination because she reasonably

believed the order itself unlawfully discriminated on the basis of sex. But this

allegation encounters a problem at the outset. Plaintiff did not tell L’Oreal of her

alleged belief. She never told anyone within the company that she believed the

order to terminate the salesperson constituted sex discrimination or, indeed, was

unlawful for any reason.

The majority and I agree on the broad principles applicable to retaliation

claims. “Lawsuits claiming retaliatory employment termination in violation of

CFEHA are analogous to federal ‘title VII’ claims (Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq.; hereafter title VII), and are evaluated

under federal law interpreting title VII cases.” (Flait v. North American Watch

Corp. (1992) 3 Cal.App.4th 467, 475-476.) To establish a prima facie case of

retaliation, “the plaintiff must show that he engaged in a protected activity, his

employer subjected him to adverse employment action, and there is a causal link

between the protected activity and the employer’s action.” (Id. at p. 476.) As I

explain, plaintiff’s action founders on the first and third of these requirements; she

engaged in no protected activity, and there is no causal link between the

employer’s action and the nonexistent protected activity. Because of this, I need

5



not consider whether L’Oreal subjected plaintiff to any adverse employment

action.

We recently explained the “need to protect whistleblowers,” like plaintiff

claims to be. (Miller v. Department of Corrections (July 18, 2005, S114097) ___

Cal.4th ___ [p. 38] (Miller).) Section 12940(h) “aids enforcement of the FEHA

and promotes communication and informal dispute resolution in the workplace.”

(Miller, supra, at p. ___ [p. 33], italics added.) “The FEHA’s stricture against

retaliation serves the salutary purpose of encouraging open communication

between employees and employers so that employers can take voluntary steps to

remedy FEHA violations [citation], a result that will be achieved only if

employees feel free to make complaints without fear of retaliation. The FEHA

should be liberally construed to deter employers from taking actions that would

discourage employees from bringing complaints that they believe to be well

founded.” (Id. at p. ___ [pp. 37-38], italics added.) We also explained that the

United States Supreme Court recently expressed similar concerns in holding that

“title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et seq. (Title

IX)) provides the whistleblower with a private right of action for retaliation.” (Id.

at p. ___ [p. 38], citing Jackson v. Birmingham Bd. of Educ. (2005) ___ U.S. ___

[125 S.Ct. 1497].)

These policy concerns are valid. Employees should be able to complain

about what they believe to be unlawful employment practices without fear of

retaliation. But it makes no sense to extend whistleblower protection to someone,

like plaintiff, who did not make any complaint, did not engage in any meaningful

communication, did not seek any informal dispute resolution in the workplace, and

did nothing to try to cause L’Oreal to take voluntary steps to avoid or remedy a

perceived FEHA violation.

6



Although section 12940(h)’s language requires the person seeking its

protection to oppose “any practices forbidden under” the FEHA—which seems to

require that the practices actually be forbidden—courts have expanded the statute

beyond its language to permit a retaliation claim by an employee “who has

complained of or opposed conduct that the employee reasonably believes to be

discriminatory, even when a court later determines the conduct was not actually

prohibited by the FEHA.” (Maj. opn., ante, at p. 12, citing Miller, supra, ___

Cal.4th at p. ___ [p. 35].) I agree with this expansion and the policy behind it.

But if we are to interpret the statute as not requiring conduct that was actually

illegal but merely conduct the employee believes to be illegal, then surely we must

require that the plaintiff communicate this belief to the employer. It makes no

sense to hold both that the conduct need not be unlawful and that the plaintiff need

not complain of it.

A multitude of federal cases interpreting the analogous federal retaliation

law supports this conclusion. An oft-cited case is Booker v. Brown & Williamson

Tobacco Co., Inc. (6th Cir. 1989) 879 F.2d 1304 (Booker).) In that case, the

plaintiff alleged that he had been illegally demoted due to a letter he had written to

the company’s human resources department that, he claimed, opposed racial

discrimination. The court disagreed that the letter constituted opposition to

unlawful discrimination. “An examination of the letter indicates that it is not in

opposition to a violation of the Act. Booker was not contesting any unlawful

employment practice; he was contesting the correctness of a decision made by his

employer.” (Id. at p. 1313.) The letter in question did claim the plaintiff was the

victim of “ethnocism,” a word the court could not locate in any dictionary. About

this claim, the court said, “Assuming that Booker intended discrimination, we hold

that a vague charge of discrimination in an internal letter or memorandum is

insufficient to constitute opposition to an unlawful employment practice. An

7



employee may not invoke the protections of the Act by making a vague charge of

discrimination. Otherwise, every adverse employment decision by an employer

would be subject to challenge under either state or federal civil rights legislation

simply by an employee inserting a charge of discrimination.” (Ibid.)

Other cases are to similar effect. “In order to engage in a protected

opposition activity . . . , a plaintiff must make an overt stand against suspected

illegal discriminatory action.” (Minnis v. McDonnell Douglas Technical Services

Co. (E.D.Mich. 2001) 162 F.Supp.2d 718, 739, italics added, citing Booker; see

also Maynard v. City of San Jose (9th Cir. 1994) 37 F.3d 1396, 1405 [evidence did

not support a retaliation claim when the plaintiff framed his complaint in terms of

a “violation of the Department’s hiring practices, not in terms of racial

discrimination”]; Allen v. Denver Public School Bd. (10th Cir. 1991) 928 F.2d

978, 985 [a grievance was not “protected opposition to discrimination” when there

was “nothing on the face of the document to alert the reader that discrimination is

being alleged”]; Pieszak v. Glendale Adventist Medical Center (C.D. Cal. 2000)

112 F.Supp.2d 970, 993-994 [plaintiff did not “point to any involvement in a

protected activity” because her “complaining about Lopez’ harassment does not

mean that she was complaining about sexual harassment”]; Reynolds v. Golden

Corral Corp. (M.D.Ala. 1999) 106 F.Supp.2d 1243, 1252 [“If plaintiff intended to

complain to Barnes about sexual harassment, she had an obligation to tell him so

or, at least, to give him sufficient facts from which he could conclude that

plaintiff’s problem involved conduct directed at her because of her sex”]; id. at p.

1253 [no valid retaliation claim because “plaintiff does not claim to have reported

the alleged sexual harassment to any of Gibson’s superiors other than Barnes,” and

even as to Barnes, “plaintiff did not oppose, discuss or suggest unlawful sex

discrimination during that conversation”]; id. at p. 1254, citing Booker; Beeck v.

Federal Exp. Corp. (D.D.C. 2000) 81 F.Supp.2d 48, 55 [no case law suggests that

8



“protected ‘opposition’ extends beyond open allegations of discrimination to the

sort of stoic, silent endurance plaintiff alleges here”]; Primes v. Reno (N.D.Ohio

1998) 999 F.Supp. 1007, 1016, citing Booker [concluding that a “vague

suggestion of racism” is “not sufficient to constitute ‘opposition’ under Title VII

and cannot form the basis for a retaliation claim”]; Crumpton v. St. Vincent’s

Hosp. (N.D.Ala. 1997) 963 F.Supp. 1104, 1119 [“In order to be protected activity,

plaintiff must present evidence showing that [the defendant’s] management knew

that her concern or complaints related in some way to race and a claim of being

discriminated against on that basis”; merely “complaining about a supervisor’s

conduct” not sufficient]; Garcia-Paz v. Swift Textiles, Inc. (D.Kan. 1995) 873

F.Supp. 547, 559 [the statute does not protect “persons who simply champion the

cause of an older worker, even if the advocate acts out of an unarticulated belief

that the employer is discriminating on the basis of age. Thus, liability will not

attach unless the activity in question advances beyond advocacy and into

recognizable opposition to an employment practice that the claimant reasonably

believes to be unlawful”]; id. at p. 560, citing Booker; Aldridge v. Tougaloo

College (S.D.Miss. 1994) 847 F.Supp. 480, 484 [plaintiff’s grievance was not

protected expression because it did not “protest any form of sex discrimination”];

id. at p. 485, citing Booker.)

I agree with the majority that courts should not parse an employee’s

complaint technically. “We do not believe employees should be required to

elaborate to their employer on the legal theory underlying the complaints they are

making, in order to be protected by the FEHA.” (Miller, supra, ___ Cal.4th at p.

___ [p. 36].) I further agree that “[a]n employee is not required to use legal terms

or buzzwords when opposing discrimination. The court will find opposing

activity if the employee’s comments, when read in their totality, oppose

discrimination.” (Wirtz v. Kansas Farm Bureau Services, Inc. (D.Kan. 2003) 274

9



F.Supp.2d 1198, 1212, and quoted in maj. opn., ante, at p. 19.) The problem here

is that plaintiff did not use any words to inform her employer she thought the order

was unlawful sex discrimination. Her words, in their totality, only asked for

justification; they did not hint at a concern that the personnel order constituted sex

discrimination.

The court in Garcia-Paz v. Swift Textiles, Inc., supra, 873 F.Supp. 547,

discussed how articulate an employee must be in complaining about perceived

unlawful employment practices. “While some courts have indicated that vague

references to unspecified discrimination are not protected, no clear rule has

emerged as to the level of specificity required, and the standard employed by most

courts is not exacting. [Citations.] [¶] Employees often do not speak with the

clarity or precision of lawyers. At the same time, however, employers need not

approach every employee’s comment as a riddle, puzzling over the possibility that

it contains a cloaked complaint of discrimination. But the thrust of inartful, subtle,

or circumspect remarks nevertheless may be perfectly clear to the employer, and

the Court discerns no evidence that Congress intended to protect only the

impudent or articulate. The relevant question, then, is not whether a formal

accusation of discrimination is made but whether the employee’s communications

to the employer sufficiently convey the employee’s reasonable concerns that the

employer has acted or is acting in an unlawful discriminatory manner.” (Id. at p.

560.)

Here, plaintiff’s complaint of sex discrimination was not merely “inartful”

or “subtle” or “circumspect,” but nonexistent. Although, ironically, as the

majority recognizes (maj. opn., ante, at pp. 4-5), plaintiff’s performance reviews

within the company have long and consistently criticized her “communication”

skills, surely she was capable of communicating in some fashion her belief that

Wiswall’s order was unlawful sex discrimination. She never mentioned to anyone

10



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.1

The majority claims that plaintiff’s statement to Wiswall 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


1

The majority states that besides requesting justification for the order,

plaintiff “additionally stated that she had hired and supervised both male and
female sales associates for a number of years, and never had been asked to fire a
male sales associate because he was not sufficiently attractive.” (Maj. opn., ante,
at p. 15.) She did so state in a declaration that she prepared for purposes of this
litigation, but she never said this to anyone within L’Oreal before the lawsuit.

11



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.” (Minnis v. McDonnell Douglas Technical Services Co.,

supra, 162 F.Supp.2d at p. 739.) 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. (Reynolds v. Golden Corral Corp., supra, 106

F.Supp.2d at p. 1252.) At most, she “was contesting the correctness of a decision

made by [her] employer,” which is insufficient. (Booker, supra, 879 F.2d at p.

1313.)

The majority suggests that the employer should have investigated what

plaintiff meant on the off chance that she held some undisclosed belief that the

order was unlawful. (Maj. opn., ante, at p. 20.) But “employers need not

approach every employee’s comment as a riddle, puzzling over the possibility that

it contains a cloaked complaint of discrimination.” (Garcia-Paz v. Swift Textiles,

Inc., supra, 873 F.Supp. at p. 560.) The purpose behind providing whistleblowers

with special protection against retaliation is to encourage “open communication

between employees and employers so that employers can take voluntary steps to

remedy FEHA violations . . . .” (Miller, supra, ___ Cal.4th at p. ___ [pp. 37-38].)

This purpose is furthered only by requiring, as the law does, that employees

overtly oppose what they believe is unlawful discrimination. Placing the onus on

employers to try to find out whether an employee believes an action is

discriminatory and for some reason has chosen not to speak out, does not further

this purpose.

Moreover, plaintiff did not say anything—not even to seek a justification—

to anyone within the company other than Wiswall. L’Oreal, her employer, is a

12



large company. The purpose behind the retaliation statue is to encourage internal

communication so the employer can avoid unlawful acts or take prompt corrective

action. In order to further this purpose, arguably a plaintiff should have to

complain to someone within the company other than the person who ordered the

suspected unlawful conduct—someone who might be able to judge the matter

objectively and take any necessary corrective action. Plaintiff alleges that she said

nothing to anyone else within L’Oreal, not even the human resources department,

because she did not have confidence in them. But the special protection against

retaliation does not extend “to the sort of stoic, silent endurance plaintiff alleges

here.” (Beeck v. Federal Exp. Corp., supra, 81 F.Supp.2d at p. 55.)

The contrast between this case and the cases the majority relies on that do

find a prima facie case of protected activity could hardly be greater. In Miller,

supra, ___ Cal.4th at page ___ [pp. 33-34] (see maj. opn., ante, at p. 18), the

plaintiffs complained repeatedly to several persons, including a “sex harassment

advisor” and “Internal Affairs” about the alleged harassment. In Wirtz v. Kansas

Farm Bureau Services, Inc., supra, 274 F.Supp.2d at page 1213 (see maj. opn.,

ante, at p. 19), the plaintiff “repeatedly discussed his concerns . . . with his direct

supervisor” and made “three formal complaints to the defendant’s management.”

In Truskoski v. ESPN, Inc. (D.Conn. 1993) 823 F.Supp. 1007, 1012 (see maj. opn.,

ante, at p. 21), the plaintiff’s complaint of the disparate impact of a staffing policy

“had definite overtones of gender bias and discrimination.” And in Mathieu v.

Norrell Corp. (2004) 115 Cal.App.4th 1174, 1187 (see maj. opn., ante, at p. 21),

the plaintiff “presented evidence she told Dunn ‘everything’ about [the

complained of] conduct and that ‘such treatment, being directed to her as a

[woman], constitutes sexual harassment.’ ” Here, by contrast, plaintiff said

nothing that had even an overtone of sex discrimination.

13



I do not doubt that a personnel order might be so blatantly discriminatory—

for example, an order to fire all African-American employees—that any employer

would know that it was unlawful and would further know that an employee’s

failure to carry it out was due to the belief (actually knowledge) that it was

discriminatory. This is not that case, and the majority does not appear to claim it

is; indeed, the majority stresses that the order need not actually have been

discriminatory at all for plaintiff to prevail. (Maj. opn., ante, at pp. 12-13.)

Wiswall ordered the salesperson’s termination due to her appearance. Plaintiff has

never claimed she believed the order was unlawful discrimination on the basis of

appearance (a ground not explicitly covered by the FEHA; see maj. opn., ante, at

p. 14), but instead she claims she believed it was sex discrimination. She based

this belief on a chain of reasoning grounded on several facts, which she kept to

herself. Whether she was correct or not, the order, by itself, was not so blatantly

discriminatory on the basis of sex as to place L’Oreal on notice that plaintiff was

opposing an act of sex discrimination.

Plaintiff has also shown no causal link between any protected activity and

the alleged adverse employment actions. First, as I have explained, she engaged in

no protected activity. Second, even if she had done so, no evidence exists that

L’Oreal knew she was engaging in such activity. “ ‘Essential to a causal link is

evidence that the employer was aware that the plaintiff had engaged in the

protected activity.’ ” (Morgan v. Regents of University of California (2000) 88

Cal.App.4th 52, 70, quoting Cohen v. Fred Meyer, Inc. (9th Cir. 1982) 686 F.2d

793, 796; see also Mulhall v. Ashcroft (6th Cir. 2002) 287 F.3d 543, 551 [plaintiff

“failed to produce any direct or circumstantial evidence from which a reasonable

jury could infer that Metcalfe and Ray knew or were aware of his protected

activity”].) A person cannot retaliate against someone for activity the person does

not know about. To prevail on the claim, plaintiff would have to show that

14



L’Oreal “retaliated against [her] because [she] complained of sex discrimination.”

(Jackson v. Birmingham Bd. of Educ., supra, ___ U.S. at p. ___ [125 S.Ct. at p.

1510].) This she cannot do. Plaintiff does not claim that anyone within L’Oreal

other than Wiswall knew of her protected activity, for she said nothing whatever

to anyone else. Even as to Wiswall, no evidence, direct or circumstantial, exists

that he knew of plaintiff’s alleged belief. The reason for this conclusion is simple.

Plaintiff kept her belief, and the reasons for it, a secret from her employer.

B. Statute of Limitations

While my conclusion that plaintiff has failed to state a prima facie case of

retaliation makes further discussion unnecessary, I comment briefly on another

aspect of the majority’s analysis. Four years ago, in Richards v. CH2M Hill, Inc.

(2001) 26 Cal.4th 798, I joined a majority to conclude that where an employer’s

course of conduct constitutes a “continuing violation” of an employee’s rights

under the FEHA, the statute of limitations begins to run only when the course of

conduct ends, or when the employee is on notice that further informal efforts to

end it will be futile. (Id. at p. 823.) More recently, the United States Supreme

Court has determined, for purposes of analogous federal antidiscrimination laws,

that one cannot recover for “discrete acts” of discrimination or retaliation falling

outside the applicable limitations period. On the other hand, the high court held,

where a “hostile work environment” claim is presented, and any of the acts

contributing to the hostile environment took place within the limitations period,

the employer’s related earlier behavior may also be considered for the purpose of

assessing liability. (National Railroad Passenger Corporation v. Morgan (2002)
536 U.S. 101, 105.)

In concluding here that L’Oreal’s hostile acts may be considered

collectively, though some occurred more than one year before plaintiff filed her

15



FEHA claim, the majority seems to feel it must choose between Richards and

Morgan, and it elects to repudiate Morgan and adhere to Richards. I see no need

for this approach. On the instant facts, Morgan itself supports the majority’s

statute of limitations conclusions.

Thus, plaintiff did not frame her FEHA retaliation claim in terms of

discrete, individually forbidden acts occurring both within and without the

limitations period. Instead, she alleged explicitly that the employer’s retribution

took the form of harassment arising from an ongoing hostile work environment.

The majority so analyzes the claim, insisting that it “need not and do[es] not

decide whether each alleged retaliatory act constitutes an adverse employment

action in and of itself,” because plaintiff “has alleged that L’Oreal’s actions

formed a pattern of systematic retaliation for her opposition to Wiswall’s

discriminatory directive.” (Maj. opn., ante, at pp. 31-32.) As the majority notes,

such a theory of retaliation is valid; “there is no requirement that an employer’s

retaliatory acts constitute one swift blow, rather than a series of subtle, yet

damaging, injuries. [Citations.]” (Id. at p. 32.)

The majority does not contravene Morgan by acknowledging that the entire

course of L’Oreal’s allegedly retaliatory conduct, both before and during the

applicable limitations period, may be considered in assessing L’Oreal’s FEHA

liability. Thus, were it necessary for me to reach the issue, I would agree with the

majority that the statute of limitations does not bar collective consideration of this

conduct. In doing so, however, I would avoid deciding whether Richards should

survive Morgan to the extent the two decisions disagree.

III. CONCLUSION

As the United States Supreme Court recently reaffirmed, retaliation claims

serve a valuable purpose by protecting whistleblowers. (Jackson v. Birmingham

Bd. of Educ., supra, ___ U.S. ___ [125 S.Ct. 1497].) The objective of protecting

16



against discriminatory practices ‘ “would be difficult, if not impossible, to achieve

if persons who complain about sex discrimination did not have effective protection

against retaliation.’ ” (Id. at p. ___ [125 S.Ct. at p. 1508].) But the majority

distorts the retaliation cause of action beyond all recognition. It now says

plaintiffs claiming illegal retaliation need not complain of what they believe to be

an unlawful employment practice until after they file the lawsuit. But it makes no

sense to extend this special protection to a person who did not communicate to the

employer—in any way, shape, or form—the belief that unlawful sex

discrimination was occurring before filing a lawsuit for retaliation. Section

12940(h) protects opposition to unlawful employment practices, not merely the

failure to obey a personnel order because of an undisclosed belief the order is

discriminatory for reasons also undisclosed. 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.

To receive the special protection that section 12940(h) gives to

whistleblowers, one must blow the whistle—not in any technical way, but in some

way. Plaintiff did not do so. Hence, I would reverse the judgment of the Court of

Appeal, which reversed summary judgment in defendant’s favor.

CHIN,

J.

I CONCUR:

BAXTER, J.

17



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Yanowitz v. L’Oreal USA, Inc.
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 106 Cal.App.4th 1036
Rehearing Granted

__________________________________________________________________________________

Opinion No.
S115154
Date Filed: August 11, 2005
__________________________________________________________________________________

Court:
Superior
County: San Francisco
Judge: Ronald Evans Quidachay and A. James Robertson II

__________________________________________________________________________________

Attorneys for Appellant:

Herbert W. Yanowitz and Joseph R. Grodin for Plaintiff and Appellant.

William R. Tamayo, Eric S. Dreiband, Lorraine C. Davis, Vincent Blackwood and Elizabeth E. Theran for
U.S. Equal Employment Opportunity Commission as Amicus Curiae on behalf of Plaintiff and Appellant.

Law Offices of Jeffrey K. Winikow and Jeffrey K. Winikow for California Employment Lawyers
Association as Amicus Curiae on behalf of Plaintiff and Appellant.

Charlotte E. Fishman for Equal Rights Advocates, Asian Law Caucus, California Women’s Law Center,
Disability Rights Education and Defense Fund, Inc., The Impact Fund, The Legal Aid Society-
Employment Law Center, Mexican American Legal Defense and Education Fund, The National Women’s
Law Center and Women’s Employment Rights Clinic as Amici Curiae on behalf of Plaintiff and Appellant.
__________________________________________________________________________________

Attorneys for Respondent:

Morgenstein & Jubelirer, William J. Carroll and David H. Bromfield for Defendant and Respondent.

Mitchell Silberberg & Knupp, Lawrence A. Michaels and Suzanne M. Steinke for California Employment
Law Council as Amicus Curiae on behalf of Defendant and Respondent.

Ballard, Rosenberg, Golper & Savitt, Linda Miller Savitt, John J. Manier and Christine T. Hoeffner as
Amici Curiae on behalf of Defendant and Respondent.

Pillsbury Winthrop, George S. Howard, Jr., and Brian L. Johnson for Employers Group as Amicus Curiae
on behalf of Defendant and Respondent.


1







Counsel who argued in Supreme Court (not intended for publication with opinion):

Joseph R. Grodin
2926 Avalon Avenue
Berkeley, CA 94705
(510) 841-9194

William J. Carroll
Morgenstein & Jubelirer
One Market, Spear Street Tower
Thirty-Second Floor
San Francisco, CA 94105
(415) 901-8700


2

Opinion Information
Date:Docket Number:
Thu, 08/11/2005S115154

Parties
1Loreal Usa, Inc. (Defendant and Respondent)
Represented by William J. Carroll
Morgenstein & Jubelirer LLP
1 Market, Spear Street Tower , 32 Fl.
San Francisco, CA

2Yanowitz, Elysa J. (Plaintiff and Cross-complainant)
Represented by Herbert W. Yanowitz
Attorney At Law
225 Bush Street, 6th Floor
San Francisco, CA

3Yanowitz, Elysa J. (Plaintiff and Cross-complainant)
Represented by Joseph R. Grodin
Attorney at Law
2926 Avalon Ave
Berkeley, CA

4Law Firm Of Ballard, Rosenberg, Golper & Savitt (Pub/Depublication Requestor)
Represented by Christine T. Hoeffner
Ballard, Rosenberg, Golper & Savitt
10 Universal City Plaza, 16th FLoor
Universal City, CA

5California Employment Law Council (Amicus curiae)
Represented by Lawrence A. Michaels
Mitchell Silberberg & Knupp
11377 West Olympic Blvd
Los Angeles, CA

6Equal Rights Advocates (Amicus curiae)
Represented by Charlotte Fishman
Equal Rights Advocates
1663 Mission Street, Suite 250
San Francisco, CA

7U.S. Equal Employment Opportunity Commission (Amicus curiae)
Represented by William R. Tamayo
EEOC
350 The Embarcadero, Suite 500
San Francisco, CA

8U.S. Equal Employment Opportunity Commission (Amicus curiae)
Represented by Elizabeth Theran
U.S. Equal Employment Opportunity Commission
1801 L Street, N.W.
Washington, DC

9Employers Group (Amicus curiae)
Represented by George S. Howard
Pillsbury Winthrop Shaw Pittman, LLP
101 W Broadway., Suite 1800
San Diego, CA

10California Employment Lawyers Association (Amicus curiae)
Represented by Jeffrey Keith Winikow
Law Offices of Jeffrey K. Winikow
1801 Century Park East, Suite 1520
Los Angeles, CA

11Ballard Rosenberg Golper & Savitt, Llp (Amicus curiae)
Represented by John J. Manier
Ballard Rosenberg & Golper
10 Universal City Plz #1650
Universal City, CA

12Asian Law Caucus, Inc. (Amicus curiae)
Represented by Charlotte Fishman
Pick Up the Pace
100 Pine Street, 33rd Floor
San Francisco, CA

13California Womens Law Center (Amicus curiae)
3160 Wilshire Blvd., Suite 1104
Los Angeles, CA 90010

14Disability Rights Education & Defense Fund Inc. (Amicus curiae)
2212 Sixth Street
Berkeley, CA 94710

15Legal Aid Society- Employment Law Center (Amicus curiae)
600 Harrison Street # 120
San Francisco, CA 94107

16National Womens Law Center (Amicus curiae)
11 Dupont Circle, N.W., Suite 900
Washington, DC 20036

17Impact Fund (Amicus curiae)
125 University Avenue
Berkeley, CA 94710

18Mexican American Legal Defense & Education Fund (Amicus curiae)
364 South Spring Street, 11th Floor
Los Angeles, CA 90014

19Womens Employment Rights Clinic (Amicus curiae)
536 Mission Street
San Francisco, CA 94105


Disposition
Aug 11 2005Opinion: Affirmed

Dockets
Apr 16 2003Petition for review filed
  By Respondent {L'OREAL USA INC.}.
Apr 16 2003Received:
  Respondent's Appendix of Non-California Authorities.
Apr 17 2003Record requested
 
Apr 21 2003Request for depublication (petition for review pending)
  By the Law Firm of Gutierrez, Preciado & House (NON-PARTY).
Apr 21 2003Received Court of Appeal record
  file jacket/briefs/one box
Apr 23 2003Request for depublication filed (another request pending)
  By The Law Firm of Ballard, Rosenberg, Golper & Savitt (NON-PARTY).
May 6 2003Answer to petition for review filed
  By counsel for Appellant {Elysa J. Yanowitz}.
May 6 2003Received:
  Appellant's Appendix of Non-California Authorities.
Jun 11 2003Petition for Review Granted (civil case)
  Votes: George, CJ., Kennard, Baxter, Chin, Brown and Moreno, JJ.
Jun 20 2003Request for extension of time filed
  By Respondent {L'OREAL USA INC.} asking until August 18, 2003 to file Respondent's Opening Brief on the Merits.
Jun 26 2003Certification of interested entities or persons filed
  By Respondent {L'OREAL USA INC.,}.
Jun 27 2003Certification of interested entities or persons filed
  By Appellant {Elysa J. Yanowitz}.
Jul 1 2003Extension of time granted
  To August 18, 2003 to file Respondent's Opening Brief on the Merits.
Aug 14 2003Request for extension of time filed
  Respondent asking until September 2, 2003 to file Respondent's Opening Brief on the Merits.
Aug 19 2003Extension of time granted
  To September 2, 2003 to file Respondent's Opening Brief on the Merits.
Sep 2 2003Opening brief on the merits filed
  By Respondent {L'oreal USA Inc.} with two volumes of Appendix of Non-California Authorities.
Sep 9 2003Received:
  Respondent's Corrected Table of Contents and Table of Authorities for Opening Brief on the Merits.
Sep 22 2003Request for extension of time filed
  Appellant {Elysa J. Yanowitz} requesting a 46-day extension to November 17, 2003 to file appellant's Answer Brief on the Merits.
Sep 24 2003Extension of time granted
  To November 17, 2003 to file Appellant's Answer Brief on the Merits.
Nov 10 2003Request for extension of time filed
  by appellant requesting to Dec. 15, 2003 to file answer brief on the merits.
Nov 13 2003Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including December 15, 2003.
Dec 15 2003Received:
  Appellant's {Elysa J. Yanowitz} oversized Answer Brief on the Merits.
Dec 16 2003Answer brief on the merits filed
  Appellant {Elysa J. Yanowitz} with two volumes of appendix of Non-California Authorities. Brief filed with permission.
Dec 22 2003Request for extension of time filed
  By Respondent {L'Oreal USA, Inc.,} asking for a 31-day extension to February 2, 2004 to file Respondent's Reply Brief on the Merits.
Dec 31 2003Extension of time granted
  To February 2, 2004 to file Respondent's {L'Oreal USA, Inc.,} Reply Brief on the Merits.
Feb 2 2004Received application to file Amicus Curiae Brief
  California Employment Law Council in support of respondent {L'Oreal USA, INC.}
Feb 2 2004Reply brief filed (case fully briefed)
  By Respondent {L'Oreal USA, INC.,} with one vol. of appendix of Non-California Authorities.
Feb 4 2004Permission to file amicus curiae brief granted
  California Employment Law Council in support of respondent.
Feb 4 2004Amicus curiae brief filed
  California Employment Law Council in support of Respondent. Answer is due within twenty days.
Feb 13 2004Request for extension of time filed
  by Equal Rights Advocates'. Requesting extension to April 2, 2004 to file the application and amicus brief in support of appellant.
Feb 18 2004Extension of time granted
  To April 2, 2004 to file application and AC Brief of Equal Rights Advocates in support of appellant.
Feb 18 2004Request for extension of time filed
  By appellant asking for a 31-day extension to and including March 26, 2004 to file Appellant's Response to AC Brief filed by California Employment Law Council.
Feb 19 2004Extension of time granted
  To March 26, 2004 to file appellant's Response to AC Brief filed by California Employment Law Council.
Mar 2 2004Received application to file Amicus Curiae Brief
  Employers Group in support of respondent L'Oreal USA, Inc.
Mar 3 2004Received application to file Amicus Curiae Brief
  Ballard, Roseberg, Golper & Savitt LLP. supports resp. L'Oreal U.S.A., Inc.
Mar 3 2004Received application to file Amicus Curiae Brief
  California Employment Lawyers Association supports applnt. Elysa J. Yanowitz.
Mar 4 2004Received application to file Amicus Curiae Brief
  U.S. Equal Employment Opportunity Commission in support of Appellant Elysa J. Yanowitz./ 40(k).
Mar 4 2004Application to appear as counsel pro hac vice (granted case)
  By Elizabeth E. Theran as counsel for AC { U.S. Equal Employment Opportunity Commission}.
Mar 8 2004Permission to file amicus curiae brief granted
  U.S. Equal Employment Opportunity Commission in support of Appellant.
Mar 8 2004Amicus curiae brief filed
  U.S Equal Employment Opportunity Commission in support of Appellant. Answer is due within twenty days.
Mar 8 2004Application to appear as counsel pro hac vice granted
  Elizaebth E. Theran of the District of Columbia on behalf of U.S. Equal Employment Opportunity Commission.
Mar 8 2004Permission to file amicus curiae brief granted
  Employers Group in support of Respondent.
Mar 8 2004Amicus curiae brief filed
  Employers Group in support of Respondent. Answer is due within twenty days.
Mar 12 2004Permission to file amicus curiae brief granted
  California Employment Lawyers Association in support of appellant.
Mar 12 2004Amicus curiae brief filed
  California Employment Lawyers Association in support of appellant. Answer is due within twenty days.
Mar 12 2004Permission to file amicus curiae brief granted
  Ballard, Rosenberg, Golper & Savitt LLP., in support of respondent.
Mar 12 2004Amicus curiae brief filed
  Ballard, Rosenberg, Golper & Savitt LLP., in support of respondent. Answer is due within twenty days.
Mar 19 2004Request for extension of time filed
  To April 12, 2004 to file a consolidated Response to AC briefs filed by California Employment Law Council, Employers Group and Ballard Rosenberg Golper & Savitt.
Mar 22 2004Request for extension of time filed
  To April 22, 2004 to file Respondent's Consolidated Response to AC Briefs filed by Equal Rights Advocates, U.S. Equal Employment Opportunity Commission and by California Employment Lawyers Assn.
Mar 25 2004Extension of time granted
  To April 12, 2004 to file appellant's Consolidated Response to AC Briefs filed by California Employment Law Council, Employers Group and by Ballard, Rosenberg, Golper & Savitt.
Mar 30 2004Extension of time granted
  To April 22, 2004 to file Respondent's Consolidated Answer to AC Briefs filed by Equal Rights Advocates, U.S. Equal Employment Opportunity Commission and By California Employment Lawyers Association.
Apr 2 2004Received application to file Amicus Curiae Brief
  Equal Rights Advocates, Asian Law Caucus, California Women's Law Center, Disability Rights Education and Defense Fund Inc., The Impact Fund, The Legal Aid Society-Employment Law Center, Mexican American Legal Defense and Education Fund, The National Women'S lAW Center and Women's Employment Rights Clinic in support of appellant.
Apr 12 2004Response to amicus curiae brief filed
  By appellant to AC Briefs filed by California Employment Law Council, The Employers Group and by Ballard, Rosenberg, Golper & Savitt, LLP.
Apr 13 2004Permission to file amicus curiae brief granted
  Equal Rights Advocates, Asian Law Caucus, California Women's Law Center, Disability Rights Education and Defense Fund, INC., The Impact Fund, The Legal Aid Society-Employment Law Center, Mexican American Legal Defense and Education Fund, The National Women's Law Center and Women's Employment Rights Clinic in support of Appellant. Answer is due on or before April 22, 2004.
Apr 13 2004Amicus curiae brief filed
  Equal Rights Advocates, Asian Law Caucus, California Women's Law Center, Disability Rights Education and Defense Fund, INC., The Impact Fund, The Legal Aid Society-Employment Law Center, Mexican American Legal Defense and Education Fund, The National Women's Law Center and Women's Employment Rights Clinic in support of Appellant. Answer is due on or before April 22, 2004.
Apr 22 2004Response to amicus curiae brief filed
  By respondent {L'Oreal USA, INC.,} to AC Briefs filed by U.S. Equal Employment Opportunity Commission, Equal Rights Advocates, and California Employment Lawyers Association.
Apr 22 2004Received:
  Respondent's Appendix of Non-California Authorities cited in Respondent's Consolidated Response to AC Briefs.
Apr 6 2005Change of contact information filed for:
  Counsel for AC Employers Group. Change of Firm Name.
May 3 2005Case ordered on calendar
  5/25/05, 9am, S.F.
May 12 2005Association of attorneys filed for:
  Herbert W. Yanowitz, counsel for appellant (Elysa J. Yanowitz) associates as attorney of record Joseph R. Grodin.
May 13 2005Supplemental brief filed
  By counsel for appellant {Elysa J. Yanowitz}.
May 13 2005Letter brief filed
  By counsel for Respondent {L'Oreal USA, Inc.} re: Recent decision by the 1 DCA Div. 1.
May 20 2005Change of contact information filed for:
  Charlotte Fishman, Counsel for AC Equal Rights Advocates, Asian Law Caucus, California Women's Law Center, Disability Rights Education and Defense Fund, INC., the Impact Fund et al.,
May 25 2005Cause argued and submitted
 
Aug 11 2005Opinion filed: Judgment affirmed in full
  Opinion by George, C.J. ----joined by Kennard, Werdegar & Moreno, JJ. Dissenting opinion by Chin, J. ----joined by Baxter, J.
Sep 13 2005Remittitur issued (civil case)
 
Sep 16 2005Received:
  Reciept for remittitur from CA 1.

Briefs
Sep 2 2003Opening brief on the merits filed
 
Dec 16 2003Answer brief on the merits filed
 
Feb 2 2004Reply brief filed (case fully briefed)
 
Feb 4 2004Amicus curiae brief filed
 
Mar 8 2004Amicus curiae brief filed
 
Mar 8 2004Amicus curiae brief filed
 
Mar 12 2004Amicus curiae brief filed
 
Mar 12 2004Amicus curiae brief filed
 
Apr 12 2004Response to amicus curiae brief filed
 
Apr 13 2004Amicus curiae brief filed
 
Apr 22 2004Response to amicus curiae brief filed
 
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