Refusal to fire 'unattractive' employee is protected activity, California court rules.

Reversing a trial court's summary judgment, the California Court of Appeal ruled in March that a manager's refusal to fire a fragrance saleswoman who was not considered attractive enough by an upper-level male manager is protected activity under the state's Fair Employment and Housing Act (FEHA). (Yanowitz v. L'Oreal USA, 131 Cal. Rptr. 2d 575 (Ct. App. 2003).)

Elysa Yanowitz, the manager, claimed that she had been retaliated against after she repeatedly refused to fire a female sales associate on the order of John Wiswall, the general manager of the Designer Fragrance Division of L'Oreal USA. She described the retaliation as a series of memos and meetings that sharply criticized her performance and her handling of certain promotions, even though she recently had been named sales manager of the year and had consistently received positive performance reviews during her first 10 years as regional sales manager.

As a result of the retaliation, Yanowitz claimed, she suffered severe stress and took disability leave. While she was on leave, the company replaced her.

"There are no other instances like this that we know of," said San Francisco attorney Herbert Yanowitz, who represented the plaintiff--his wife. While retaliation cases are common, he said, this is probably the first in which the alleged retaliation was due to a mid-level manager's refusal to fire an employee based on physical attractiveness. He described the cosmetics and fragrance business as "an industry where no one questions their superiors and no one who wants to stay in the industry files a lawsuit."

After Elysa Yanowitz and Wiswall toured the Ralph Lauren installation at the San Jose Macy's store in late 1997, Wiswall instructed Yanowitz to dismiss a saleswoman and replace her with someone "hot." Yanowitz did not dismiss the associate, and on a subsequent tour, Wiswall repeated his demand. On the way out of the store, he passed an attractive, young, blond woman and told Yanowitz to "get [him] one like that."

Yanowitz never carried out the general manager's order, despite his repeated demands. Several times she asked for adequate justification for firing the sales associate, who was one of the top sellers of men's fragrances in the Macy's West chain.

Although Yanowitz's complaint originally included claims for sex, age, and religious discrimination, she appealed only the trial court's summary judgment of her unlawful-retaliation claim.

Because Yanowitz did not allege that the order was discriminatory when it was issued, the trial court found that she failed to establish that her refusal to fire the associate was protected activity under FEHA. L'Oreal argued on appeal that because physical appearance is not a protected category under the statute and because Yanowitz did not expressly complain about the order, her actions are not protected.

The appeals court rejected that view. "The issue is not whether physical appearance is a protected category," Associate Justice Linda Gemello wrote for the court. "Instead, the issue is one of sex discrimination: May a male executive insist that a female subordinate be terminated because she is not sexually appealing to him, when no similar orders are issued with respect to male employees?"

The court determined that an order to fire a saleswoman because she did not conform to a male executive's "personal standards for sexual desirability" qualifies as sex discrimination.

"Yanowitz's evidence permits the inference that Wiswall would not have ordered the employee fired if she had been a man, simply because a man's physical attractiveness would not have been an issue," Gemello wrote. "Moreover, we note that Yanowitz did not have to prove that Wiswall's order was discriminatory; she needed only to show a good-faith, reasonable belief that it was. She did so here."

"Initially the defense said there was nothing wrongful about asking my wife to fire someone unattractive," said attorney Yanowitz. "They claimed that L'Oreal's reason for acting that way toward my wife were legitimate personnel issues."

Elysa Yanowitz claimed that her supervisors' retaliatory conduct began a few months after Wiswall issued his original order. During separate meetings with her immediate supervisor, Richard Roderick, and Wiswall, they criticized her for her "dictatorial style" and told her that they were "sick and tired" of all her mistakes.

In response to Yanowitz's claim that the criticism of her performance was pretextual, L'Oreal argued that her performance was declining and that the criticism was warranted. The company's justification shifted to Yanowitz the burden of proving otherwise.

As evidence of pretext, Yanowitz offered a statement made by one of her subordinates, who claimed that she spoke with a L'Oreal executive in March 1998 at the New York office and was told that Wiswall had "issues" with Yanowitz and wanted to "get rid of" her.

"The timing of this statement is significant," Gemello wrote. "Yanowitz's evidence shows that Wiswall's repeated requests to fire the female employee he found unattractive came in the months preceding this statement. Yanowitz was only a year removed from winning regional sales manager of the year."