In a 4-2 decision, the California Supreme Court held on Thursday that an employee can maintain a retaliation action against an employer even where the employee’s protected activity is “subtle” and the employer’s actions are negligible.  This ruling reminds California employers to be extremely careful when taking adverse action against any employee who engages in activity that may be considered protected.

Factual Background

Elysa Yanowitz was the regional sales manager for the Designer Fragrance Division of L’Oreal USA.  In that position, she was responsible for managing the sales force for both L’Oreal and Ralph Lauren fragrances in Northern California and the Pacific Northwest.  In 1997, John Wiswall, the general manager for the Designer Fragrance Division, and Yanowitz toured a Macy’s store in San Jose.  Following the tour, Wiswall allegedly told Yanowitz to replace the female sales associate at the Ralph Lauren counter because she “was not good looking enough.”  He also allegedly told her to “get me somebody hot” for that position.  Yanowitz did not terminate the sales clerk as directed.

Following her refusal to terminate the sales associate, Yanowitz alleges that Wiswall began criticizing her managerial style and scrutinizing her expense reports. Ultimately, she left work on disability leave because of stress.  After failing to return to her job, L’Oreal replaced her.  Yanowitz sued her former employer, alleging gender discrimination and illegal retaliation under California law.  The trial judge dismissed the case.  The Court of Appeal reversed this decision and L’Oreal petitioned the California Supreme Court for review.

Legal Analysis

In Thursday’s decision, the California Supreme Court focused on two key issues – (1) had Yanowitz engaged in a protected activity when she refused to terminate the sales associate; and (2) did L’Oreal’s actions constitute an adverse employment action sufficient to establish a prima facie claim of retaliation.

L’Oreal argued that Yanowitz had not engaged in a protected activity because she merely sought “adequate justification” for the termination and did not complain to Wiswall or higher management that she believed the directive was discriminatory.   Writing for the majority, Chief Justice Ronald George held that Yanowitz had engaged in protected activity and that she need not specifically state that she considered Wiswall’s directive discriminatory to oppose the action.  Rather, the Court continued, her request for “adequate justification” to terminate the employee should have placed Wiswall on notice that she was blowing a whistle on discrimination.  On this point, the Court noted, “[i]t 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.”

The Court also concluded that Wiswall’s conduct towards Yanowitz could de deemed retaliatory.  According to the Court, “[T]here is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.”  “Actions that threaten to derail an employee’s career are objectively adverse,” the justices found, and could support a jury finding of an adverse employment action.  Thus, the case was remanded to the lower court to determine the truth of Yanowitz’s allegations.  Yanowitz v. L’Oreal USA, Inc., No. S115154, California Supreme Court (August 11, 2005).

Practical Impact

This ruling further clouds retaliation law in California.  The Court did not provide a bright-line test that an employer could use to determine when an employee is engaging in a protected activity or when an employer’s actions subsequent to the employee’s conduct might be considered adverse.  According to Scott Witlin, a shareholder in Ogletree Deakins’ Los Angeles office: “Employers must be careful to evaluate seemingly insubordinate behavior to determine if it is motivated by an attempt to protest behavior the employee believes is unlawful.”

Should you have any questions about this decision and its ramifications, please contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department at 866-287-2576 or via e-mail at

Note: This article was published in the August 12, 2005 issue of the California eAuthority.

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