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Former California Supreme Court Justice Joseph Grodin got no special treatment Wednesday when he returned to argue a retaliation case that seemed to leave the court divided. At least three justices questioned why Grodin’s client, Elysa Yanowitz, should be allowed to sue cosmetics giant L’Oreal USA Inc. for retaliation when she never put the company on notice that it might have committed an illegal act. Yanowitz, a former San Francisco-based regional sales manager, claims she was subjected to discrimination and a hostile workplace after refusing a male manager’s alleged order to fire a woman he deemed not “hot” enough for the company’s image. “How can you be a whistleblower without blowing the whistle?” Justice Ming Chin asked, after getting Grodin, who was on the high court from 1982-87, to concede that his client hadn’t complained to the company’s human resources department. Justice Marvin Baxter wondered whether employees should at least try to report the problem to other superiors, and Justice Janice Rogers Brown asked whether it was sufficient for Yanowitz to have a subjective belief, but no documentary proof, that men in comparable positions were not held to similar appearance standards. Chief Justice Ronald George came to Grodin’s rescue later by suggesting that complaining to the human resources department might be “just as hazardous” for Yanowitz as confronting her immediate boss. “She’s been reprimanded by the general manager,” he said, adding that it might not be wise for the court to propose that kind of “confrontational action.” Yanowitz, who joined L’Oreal in 1981 and rose to regional sales manager five years later, sued the company in 1999, claiming she had been the victim of retaliation after refusing to fire a saleswoman at the Macy’s store in Santa Clara’s Valley Fair Mall. She claimed that John “Jack” Wiswall, a visiting manager from New York, told her in 1997 that the woman was “not good looking enough” and to fire her and “get me somebody hot.” Upon finding out on a return trip that the woman — a top saleswoman — hadn’t been fired, Wiswall allegedly pointed to an attractive blonde and said “Goddamn it, get me one that looks like that.” Yanowitz, named “Sales Manager of the Year” in 1997, claims she soon began receiving complaints and bad evaluations. She also contends that Wiswall began soliciting negative information from her colleagues about her and berated her in front of staff. San Francisco Superior Court Judge Ronald Quidachay tossed the suit out on summary judgment. But the 1st District Court of Appeal reversed in 2003, holding that Yanowitz’s refusal to follow an improper order was protected activity for which an employer cannot retaliate. “A male executive’s order to fire a female employee because she fails to meet the executive’s standards for sexual attractiveness,” Justice Linda Gemello wrote, “is an act of sex discrimination when no similar standards are applied to men.” In court papers and in oral arguments, L’Oreal’s attorney, Morgenstein & Jubelirer partner William Carroll, argued that the 1st District erred by not following two sister courts’ rulings that an employer’s alleged retaliatory conduct isn’t actionable unless it has a “substantial and material adverse effect” on the terms and conditions of employment. Chief Justice George said the evidence seemed to indicate that Yanowitz had been the victim of adverse action that was severe enough to lead to a breakdown and her departure from the company. He also told Carroll that L’Oreal offered no evidence that men were held to the same physical standards as women. “It sure would help things if you had a memo that said, ‘Here’s the standards for men. Here’s the standards for women.’ You have nothing like that.” Justice Joyce Kennard noted that some federal courts have upheld the concept of “passive opposition,” and that an employer could reasonably conclude that it has been put on notice if an employee refuses to follow an order that appears discriminatory. Justice Baxter later pointed out that an employee’s looks and appearance are essential for some positions, such as modeling. But Grodin, now a professor at Hastings College of the Law, said he wasn’t arguing that employers can’t ever require attractiveness. “On the record, there is absolutely no evidence of that in this case,” he said. “The evidence is to the contrary.” In what led to a lighter moment, Grodin told the court that there was no doubt that L’Oreal was trying to force Yanowitz to commit an act of discrimination. “To say, ‘get me somebody hot,’ that’s not language typically used in our society to describe males,” he said. Justice Brown got a smirk on her face, and a few minutes later after a serious round of questioning told Grodin — to everyone’s delight — “I have to disagree with you that the term ‘hot’ is not gender neutral.” A ruling in Yanowitz v. L’Oreal USA, S115154, is expected within 90 days.

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