News & Events - Newsletters
Workplace Wave, March 2003
The following are exerpts from this month's newsletter.
Retaliation For Refusal to Fire an Employee
Retaliation lawsuits continue their upward trend. Traditionally thought of as "whistleblower" claims, retaliation actually arises in a variety of contexts, including adverse action taken as a result of "protected activity," such as raising or filing a legal complaint, participating in an investigation or exercising a legal right (e.g., taking a leave of absence). The recent case of Yanowitz v. L'Oreal USA, Inc. (3/7/03) 3 CDOS 2079, holds that protected activity includes an employee's refusal to follow instructions to fire a direct report when to do so would constitute sex discrimination.
Elysa Yanowitz was a regional sales manager for L'Oreal USA, a cosmetics and fragrance company, who worked in the European Designer Fragrance Division. For over eighteen years, she had received very favorable performance evaluations. While touring the Ralph Lauren installation in a Macy's store in San Jose, plaintiff's manager told her that the female sales associate was "not good looking enough," instructed plaintiff to fire her and directed her to "get me somebody hot," or words to that effect. On a return trip to the store, the manager discovered that the sales associate had not been fired and reiterated to Yanowitz that he wanted the associate fired. He again mentioned that he wanted someone better looking and pointed to a young attractive blonde woman in the store as an example. Yanowitz asked the manager for an adequate justification before she would fire the sales associate. He provided none and she did not fire the associate.
Shortly after this encounter, Yanowitz's immediate supervisor and the manager in question began gathering negative information about Yanowitz. This included contacting one of her direct reports to inquire if she had any frustrations with Yanowitz, then having Human Resources interview the employee. Within the next few months, a series of disciplinary memos were written to Yanowitz and she was harshly criticized in a meeting. Shortly after the employer issued a detailed performance improvement plan, plaintiff went on a stress leave and never returned.
The court asked: "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?" And, the court responded: No, because this constitutes sex discrimination. It rejected the employer's argument that the plaintiff had not reported this incident to HR and that an unarticulated belief that discrimination has occurred does not constitute protected activity to support a retaliation claim. The court held that the employer had notice because the male executive himself, as an agent of the company, engaged in the discrimination. An employer issuing an unlawful order may fairly be charged with notice that the order is unlawful; it is not the employee's burden to educate the employer.
In reversing the summary judgment entered in favor of the employer, the court also found that Yanowitz had sufficiently demonstrated that adverse action had occurred from the protected activity. It noted that months of unwarranted criticism of a previously honored employee, an implied threat of termination, contacts with subordinates that could have the effect of undermining a manager's effectiveness, and new regulation of the manner in which a manager oversaw her territory would discourage a reasonable manager from disobeying future unlawful orders. A jury could find that the handwriting was on the wall and plaintiff's chance of career advancement had ended because she had refused to carry out her manager's orders.
Tips on Training Managers on Legal Responsibilities
Managers have their hands full. They don't have time to sit through workshops. They will call HR when they have a problem or think there might be a legal issue, but until then, there is no reason to become legal experts.
Managers need to understand their responsibilities as agents of the organization as well as areas in which they have potential individual liability. They do not need to become legal experts nor do they even need to know what FMLA stands for. But they do need to know how to identify certain issues and the organization's workplace policies and practices.
Organizations must find an interesting way to present current employment law information to busy managers. As much as possible, fold the legal training into other types of management and leadership training. The more real and practical the context, the more value will be placed on the training and the greater the knowledge retention rate.