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, 08/11/2005 | S115154 |
Parties
| 1 | Loreal Usa, Inc. (Defendant and Respondent) Represented by William J. Carroll Morgenstein & Jubelirer LLP 1 Market, Spear Street Tower , 32 Fl. San Francisco, CA |
| 2 | Yanowitz, Elysa J. (Plaintiff and Cross-complainant) Represented by Herbert W. Yanowitz Attorney At Law 225 Bush Street, 6th Floor San Francisco, CA |
| 3 | Yanowitz, Elysa J. (Plaintiff and Cross-complainant) Represented by Joseph R. Grodin Attorney at Law 2926 Avalon Ave Berkeley, CA |
| 4 | Law 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 |
| 5 | California Employment Law Council (Amicus curiae) Represented by Lawrence A. Michaels Mitchell Silberberg & Knupp 11377 West Olympic Blvd Los Angeles, CA |
| 6 | Equal Rights Advocates (Amicus curiae) Represented by Charlotte Fishman Equal Rights Advocates 1663 Mission Street, Suite 250 San Francisco, CA |
| 7 | U.S. Equal Employment Opportunity Commission (Amicus curiae) Represented by William R. Tamayo EEOC 350 The Embarcadero, Suite 500 San Francisco, CA |
| 8 | U.S. Equal Employment Opportunity Commission (Amicus curiae) Represented by Elizabeth Theran U.S. Equal Employment Opportunity Commission 1801 L Street, N.W. Washington, DC |
| 9 | Employers Group (Amicus curiae) Represented by George S. Howard Pillsbury Winthrop Shaw Pittman, LLP 101 W Broadway., Suite 1800 San Diego, CA |
| 10 | California 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 |
| 11 | Ballard Rosenberg Golper & Savitt, Llp (Amicus curiae) Represented by John J. Manier Ballard Rosenberg & Golper 10 Universal City Plz #1650 Universal City, CA |
| 12 | Asian Law Caucus, Inc. (Amicus curiae) Represented by Charlotte Fishman Pick Up the Pace 100 Pine Street, 33rd Floor San Francisco, CA |
| 13 | California Womens Law Center (Amicus curiae) 3160 Wilshire Blvd., Suite 1104 Los Angeles, CA 90010 |
| 14 | Disability Rights Education & Defense Fund Inc. (Amicus curiae) 2212 Sixth Street Berkeley, CA 94710 |
| 15 | Legal Aid Society- Employment Law Center (Amicus curiae) 600 Harrison Street # 120 San Francisco, CA 94107 |
| 16 | National Womens Law Center (Amicus curiae) 11 Dupont Circle, N.W., Suite 900 Washington, DC 20036 |
| 17 | Impact Fund (Amicus curiae) 125 University Avenue Berkeley, CA 94710 |
| 18 | Mexican American Legal Defense & Education Fund (Amicus curiae) 364 South Spring Street, 11th Floor Los Angeles, CA 90014 |
| 19 | Womens Employment Rights Clinic (Amicus curiae) 536 Mission Street San Francisco, CA 94105 |
| Disposition | |
| Aug 11 2005 | Opinion: Affirmed |
| Dockets | |
| Apr 16 2003 | Petition for review filed By Respondent {L'OREAL USA INC.}. |
| Apr 16 2003 | Received: Respondent's Appendix of Non-California Authorities. |
| Apr 17 2003 | Record requested |
| Apr 21 2003 | Request for depublication (petition for review pending) By the Law Firm of Gutierrez, Preciado & House (NON-PARTY). |
| Apr 21 2003 | Received Court of Appeal record file jacket/briefs/one box |
| Apr 23 2003 | Request for depublication filed (another request pending) By The Law Firm of Ballard, Rosenberg, Golper & Savitt (NON-PARTY). |
| May 6 2003 | Answer to petition for review filed By counsel for Appellant {Elysa J. Yanowitz}. |
| May 6 2003 | Received: Appellant's Appendix of Non-California Authorities. |
| Jun 11 2003 | Petition for Review Granted (civil case) Votes: George, CJ., Kennard, Baxter, Chin, Brown and Moreno, JJ. |
| Jun 20 2003 | Request 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 2003 | Certification of interested entities or persons filed By Respondent {L'OREAL USA INC.,}. |
| Jun 27 2003 | Certification of interested entities or persons filed By Appellant {Elysa J. Yanowitz}. |
| Jul 1 2003 | Extension of time granted To August 18, 2003 to file Respondent's Opening Brief on the Merits. |
| Aug 14 2003 | Request for extension of time filed Respondent asking until September 2, 2003 to file Respondent's Opening Brief on the Merits. |
| Aug 19 2003 | Extension of time granted To September 2, 2003 to file Respondent's Opening Brief on the Merits. |
| Sep 2 2003 | Opening brief on the merits filed By Respondent {L'oreal USA Inc.} with two volumes of Appendix of Non-California Authorities. |
| Sep 9 2003 | Received: Respondent's Corrected Table of Contents and Table of Authorities for Opening Brief on the Merits. |
| Sep 22 2003 | Request 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 2003 | Extension of time granted To November 17, 2003 to file Appellant's Answer Brief on the Merits. |
| Nov 10 2003 | Request for extension of time filed by appellant requesting to Dec. 15, 2003 to file answer brief on the merits. |
| Nov 13 2003 | Extension 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 2003 | Received: Appellant's {Elysa J. Yanowitz} oversized Answer Brief on the Merits. |
| Dec 16 2003 | Answer brief on the merits filed Appellant {Elysa J. Yanowitz} with two volumes of appendix of Non-California Authorities. Brief filed with permission. |
| Dec 22 2003 | Request 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 2003 | Extension of time granted To February 2, 2004 to file Respondent's {L'Oreal USA, Inc.,} Reply Brief on the Merits. |
| Feb 2 2004 | Received application to file Amicus Curiae Brief California Employment Law Council in support of respondent {L'Oreal USA, INC.} |
| Feb 2 2004 | Reply brief filed (case fully briefed) By Respondent {L'Oreal USA, INC.,} with one vol. of appendix of Non-California Authorities. |
| Feb 4 2004 | Permission to file amicus curiae brief granted California Employment Law Council in support of respondent. |
| Feb 4 2004 | Amicus curiae brief filed California Employment Law Council in support of Respondent. Answer is due within twenty days. |
| Feb 13 2004 | Request 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 2004 | Extension of time granted To April 2, 2004 to file application and AC Brief of Equal Rights Advocates in support of appellant. |
| Feb 18 2004 | Request 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 2004 | Extension of time granted To March 26, 2004 to file appellant's Response to AC Brief filed by California Employment Law Council. |
| Mar 2 2004 | Received application to file Amicus Curiae Brief Employers Group in support of respondent L'Oreal USA, Inc. |
| Mar 3 2004 | Received application to file Amicus Curiae Brief Ballard, Roseberg, Golper & Savitt LLP. supports resp. L'Oreal U.S.A., Inc. |
| Mar 3 2004 | Received application to file Amicus Curiae Brief California Employment Lawyers Association supports applnt. Elysa J. Yanowitz. |
| Mar 4 2004 | Received application to file Amicus Curiae Brief U.S. Equal Employment Opportunity Commission in support of Appellant Elysa J. Yanowitz./ 40(k). |
| Mar 4 2004 | Application 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 2004 | Permission to file amicus curiae brief granted U.S. Equal Employment Opportunity Commission in support of Appellant. |
| Mar 8 2004 | Amicus curiae brief filed U.S Equal Employment Opportunity Commission in support of Appellant. Answer is due within twenty days. |
| Mar 8 2004 | Application 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 2004 | Permission to file amicus curiae brief granted Employers Group in support of Respondent. |
| Mar 8 2004 | Amicus curiae brief filed Employers Group in support of Respondent. Answer is due within twenty days. |
| Mar 12 2004 | Permission to file amicus curiae brief granted California Employment Lawyers Association in support of appellant. |
| Mar 12 2004 | Amicus curiae brief filed California Employment Lawyers Association in support of appellant. Answer is due within twenty days. |
| Mar 12 2004 | Permission to file amicus curiae brief granted Ballard, Rosenberg, Golper & Savitt LLP., in support of respondent. |
| Mar 12 2004 | Amicus curiae brief filed Ballard, Rosenberg, Golper & Savitt LLP., in support of respondent. Answer is due within twenty days. |
| Mar 19 2004 | Request 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 2004 | Request 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 2004 | Extension 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 2004 | Extension 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 2004 | Received 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 2004 | Response 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 2004 | Permission 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 2004 | Amicus 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 2004 | Response 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 2004 | Received: Respondent's Appendix of Non-California Authorities cited in Respondent's Consolidated Response to AC Briefs. |
| Apr 6 2005 | Change of contact information filed for: Counsel for AC Employers Group. Change of Firm Name. |
| May 3 2005 | Case ordered on calendar 5/25/05, 9am, S.F. |
| May 12 2005 | Association of attorneys filed for: Herbert W. Yanowitz, counsel for appellant (Elysa J. Yanowitz) associates as attorney of record Joseph R. Grodin. |
| May 13 2005 | Supplemental brief filed By counsel for appellant {Elysa J. Yanowitz}. |
| May 13 2005 | Letter brief filed By counsel for Respondent {L'Oreal USA, Inc.} re: Recent decision by the 1 DCA Div. 1. |
| May 20 2005 | Change 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 2005 | Cause argued and submitted |
| Aug 11 2005 | Opinion 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 2005 | Remittitur issued (civil case) |
| Sep 16 2005 | Received: Reciept for remittitur from CA 1. |
| Briefs | |
| Sep 2 2003 | Opening brief on the merits filed |
| Dec 16 2003 | Answer brief on the merits filed |
| Feb 2 2004 | Reply brief filed (case fully briefed) |
| Feb 4 2004 | Amicus curiae brief filed |
| Mar 8 2004 | Amicus curiae brief filed |
| Mar 8 2004 | Amicus curiae brief filed |
| Mar 12 2004 | Amicus curiae brief filed |
| Mar 12 2004 | Amicus curiae brief filed |
| Apr 12 2004 | Response to amicus curiae brief filed |
| Apr 13 2004 | Amicus curiae brief filed |
| Apr 22 2004 | Response to amicus curiae brief filed |
