• Finley Employment Law

Yanowitz v. L'Oreal USA, Inc.

Updated: Apr 10


Originally Published on January 23, 2021; Revised on April 9, 2021


In Yanowitz v. L’Oreal USA, Inc., 36 Cal.4th 1028 (2005), Plaintiff Elysa Yanowitz (“Yanowitz”) sued L’Oreal USA, Inc. (“L’Oreal”) for retaliation in violation of California’s Fair Employment and Housing Act (the “FEHA”), among other things. The salient facts of Yanowitz are set forth below: Background Facts In 1981, Yanowitz began working as a sales representative for L’Oreal’s predecessor and in 1986, was promoted to the position of regional sales manager for Northern California and the Pacific Northwest. 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.” (Yanowitz v. L’Oreal USA, Inc., 36 Cal.4th 1028, 1037 (2005))


From 1986 to 1996, Yanowitz's performance was consistently rated as “Above Expectation” and in some instances, close to “Outstanding” (the highest possible rating). However, her ratings during this period also consistently had “some criticism of her ‘listening’ and ‘communication’ skills.” (Id.)


For the 1996 year, Yanowitz was named L’Oreal’s regional sales manager of the year. In 1996, Richard Roderick (“Roderick”), the vice-president of sales for the designer fragrance division, became Yanowitz’s immediate supervisor. He reported to Jack Wiswall (“Wiswall”), the general manager of the designer fragrance division. In June 1997, Roderick wrote a memorandum to Yanowitz’s personnel file, criticizing her listening skills and characterizing her attitude as “negative.” (Id. at 1038) In August 1997, Roderick also wrote a memorandum to L’Oreal’s HR manager, again criticizing Yanowitz’s listening skills and her “negative” attitude. (Id.) In Fall 1997, L’Oreal merged the designer fragrance division with the Ralph Lauren fragrance division. After this merger, Yanowitz was tasked to supervise the employees who formerly worked for the Ralph Lauren division and the marketing of Ralph Lauren fragrances in her region. Shortly afterwards, Wiswall and Yanowitz toured the Ralph Lauren Polo installation at Macy’s in the Valley Fair Shopping Center in San Jose, California. After the tour, Wiswall instructed Yanowitz to terminate the employment of a female sales associate because he did not believe that she was sufficiently physically attractive. He "expressed a preference for fair-skinned blondes and directed Yanowitz to '[g]et me somebody hot,' or words to that effect." (Id.) During a subsequent visit to the store, Wiswall discovered that Yanowitz had not dismissed the sales associate. He complained to Yanowitz about this. When he passed another sales associate on his way out, he “turned to Yanowitz, and told her, ‘God damn it, get me one that looks like that.’” (Id.) 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.” (Id.) In March 1998, Yanowitz learned that the sales associate was a top seller of men’s fragrances in the Macy’s West chain. Ultimately, Yanowitz did not terminate the sales associate. Yanowitz also “never complained to her immediate supervisor or to [HR] that Wiswall was pressuring her to fire the sales associate, however, nor did she explicitly tell Wiswall that she believed his order was discriminatory.” (Id.) In April 1998, Roderick began contacting Yanowitz’s subordinates to solicit negative information about her. For instance, he called Christine DeGracia (“DeGracia”) and asked her about any “frustrations” she had with Yanowitz. (Id. at 1039) When Roderick asked DeGracia whether anyone else was having problems with Yanowitz, DeGracia did not provide any names. Two weeks later, he called DeGracia again and said it was urgent that she help him convince others to come forward with their problems. In June 1998, Roderick again asked DeGracia to notify him of negative incidents involving Yanowitz. On May 13, 1998, at Roderick’s request, Yanowitz had a meeting with Roderick. During the meeting, he criticized Yanowitz for her “‘dictatorial’ management style with regard to two account executives.” (Id.) At the end of the meeting, he said, “‘It would be a shame to end an eighteen-year career this way.’” (Id.) In May and June 1998, Roderick and Wiswall audited Yanowitz’s travel and expense reports. On June 19, 1998, a Macy’s West representative complained to Roderick about the handling of a Polo Sport promotion, which Yanowitz’s team was responsible for coordinating. That same month, Yanowitz met with Wiswall, Roderick, and various account executives and 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.” (Id.) In July 1998, the Macy’s West representative complained to Roderick again about the handling of a different promotion by Yanowitz’s team. On June 22, 1998, Yanowitz wrote to Roderick, stating that her Macy’s West team was disturbed about certain issues. Wiswall subsequently wrote a note to Roderick about Yanowitz’s memo: “‘Dick—She is writing everything! Are you!!!???’” (Id.) A week later, Roderick prepared three memos to HR documenting the May 13, 1998 meeting with Yanowitz, a June 4, 1998 conversation with DeGracia, and a visit to Yanowitz’s market area in early June 1998. These memos criticized Yanowitz. On July 16, 1998, Roderick delivered a more elaborate memorandum to Yanowitz. It criticized her handling of certain promotions and coordination of advertising, among other things. Yanowitz viewed the memorandum as an effort to develop pretextual grounds to eventually terminate her. She suggested that they meet to discuss a severance package, but also stated that she wanted to prepare her written response to this memorandum. Carol Giustino (“Giustino”), the new HR director, scheduled a meeting for July 22, 1998 and rejected Yanowitz’s requests (a) to postpone the meeting and (b) that her attorney-husband be allowed to attend the meeting. During the July 22, 1998 meeting, Roderick and Giustino “questioned Yanowitz about the accusations in the July 16 memorandum without reading her written response,” and Yanowitz “broke down in tears.” (Id. at 1040) Roderick imposed a new travel schedule on Yanowitz, regulating precisely the frequency of Yanowitz’s visits to each market in her territory. Two days after the meeting, Yanowitz went on disability leave due to stress and never returned to L’Oreal, which replaced her in November 1998. Yanowitz subsequently sued L’Oreal for retaliation under the FEHA, among other things. Yanowitz’s Retaliation Claim Under the FEHA To succeed on a retaliation claim under the FEHA, a plaintiff must show (1) he/she engaged in a “protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) there is a causal link between the protected activity and the employer’s action. (See id. at 1042) The FEHA makes it unlawful “[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.” (Cal. Gov. Code sec. 12940(h) (italics added)) In the instant case, Wiswall ordered Yanowitz to terminate the sales associate because he found the associate sexually unattractive. The California Supreme Court addressed the question of “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.’” (Id.) The Court noted that 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.” (Id. at 1043 (emphasis added))


Employees "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…." (Id. (emphasis added)) Yanowitz argued 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.” (Id. at 1044). Yanowitz explained 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.” (Id.) The Court agreed with Yanowitz. L’Oreal failed to produce evidence “suggesting that Wiswall’s order was based upon the particular sales associate’s performance or sales record.” (Id. at 1045) L'Oreal also “did not establish that the company maintained a general policy 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.” (Id. (emphasis added)) L’Oreal argued that Yanowitz did not produce sufficient evidence 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.” (Id. at 1045-46) In other words, according to L’Oreal, Yanowitz did not “‘oppose[]’ a practice forbidden by the FEHA…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.” (Id. at 1046) In contrast, Yanowitz contended that while she “never explicitly stated to Wiswall that she believed his order was discriminatory,…in light of the nature of the order and her repeated requests that Wiswall provide ‘adequate justification’ for that order, there is sufficient evidence…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.” (Id.) The Court agreed 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.” (Id.) In other words, an employee does not necessarily need to tell her employer “explicitly and directly that she believes an order is discriminatory.” (Id.) Instead, the court “will find opposing activity if the employee’s comments, when read in their totality, oppose discrimination.’” (Id.at 1047 (citation omitted)) “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.” (Id. (citation and quotation marks omitted)) The Court found that a jury properly could find that Wiswall knew that Yanowitz’s refusal to comply with his order to fire the sales associate was based on her belief that his order constituted sex discrimination – i.e., “the application of a different standard to a female employee than that applied to male employees.” (Id. at 1048) A jury could also 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.” (Id.) Click here to read the full California Supreme Court opinion.


If you have questions about retaliation in the workplace, call ((916) 612-0326) or email (contact@finleyemplaw.com) Finley Employment Law today. We serve clients throughout California, including Sacramento, Roseville, Walnut Creek, San Ramon, and Concord.

The information in this blog post is for general informational and advertising purposes only and is not, nor is it intended to be, legal advice. Instead, you should speak with a California employment attorney for advice regarding your individual situation.

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