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The saying that beauty is skin deep took on a new complexion Thursday when one of the world’s largest cosmetics companies learned it could be liable for insisting on the hiring of “hot” sales representatives. By a 4-2 vote, the California Supreme Court ruled that L’Oreal USA Inc. could be sued under the state’s Fair Employment and Housing Act for allegedly retaliating against Elysa Yanowitz, a former regional sales manager for Northern California, for refusing to fire a woman not considered attractive enough for company standards. “A rule that would allow retaliation against an employee for opposing conduct the employee reasonably and in good faith believed was discriminatory,” Chief Justice Ronald George wrote for the majority, “would significantly discourage employees from opposing incidents of discrimination, thereby undermining the fundamental purposes of the anti-discrimination statutes.” Justice Ming Chin, joined by Justice Marvin Baxter, dissented, arguing that Yanowitz had never directly told her bosses that she considered their orders to find good-looking employees sexually discriminatory or unlawful in any way. “This case, thus, presents the question whether a person can be a whistleblower without blowing the whistle,” Chin wrote. “At least in this case, where the personnel order was not clearly unlawful, I would say no.” Yanowitz, who joined L’Oreal 24 years ago and quickly rose to regional sales manager, sued the company in 1999, claiming she had been the victim of retaliation after refusing to fire a saleswoman working in the Ralph Lauren Polo installation at the Macy’s store in Santa Clara, Calif.’s Valley Fair Shopping Center. She insisted that John “Jack” Wiswall, a visiting general manager from New York, told her in 1997 that the employee — a top saleswoman of men’s fragrances in the Macy’s West chain — was “not good looking enough.” He allegedly ordered Yanowitz to fire the woman and “get me somebody hot.” On a return trip, he reportedly was angered to discover the woman still employed and supposedly pointed at an attractive blonde nearby and demanded, “Goddamn it, get me one that looks like that.” Yanowitz, chosen “Sales Manager of the Year” in 1997, didn’t comply after getting no response to her requests for justification for terminating the employee. She contends she then began receiving complaints and bad evaluations, was berated in front of her staff, and was the target of a whisper campaign portraying her as a problematic worker. Yanowitz left the company on disability leave for stress in 1998 and never returned. A San Francisco trial court judge threw out Yanowitz’s suit on summary judgment, but the 1st District Court of Appeal reinstated it in 2003, saying that Yanowitz’s refusal to follow an improper order was protected activity under the FEHA. The high court agreed. “A trier of fact,” George wrote in Yanowitz v. L Oreal USA, 05 C.D.O.S. 7109, “properly could find that Wiswall knew that Yanowitz’s refusal to comply with his order to fire the sales associate was based on Yanowitz’s belief that Wiswall’s order constituted discrimination on the basis of sex.” He also rejected the premise raised in Chin’s dissent that Yanowitz hadn’t complained to her bosses before filing suit. Employees are entitled to act if it’s sufficiently clear they have reason to believe an order violates the law. “An employer may not avoid the reach of the FEHA’s anti-retaliation provision,” George wrote, “by relying on the circumstance that the employee did not explicitly inform the employer that she believed the order was discriminatory.” The majority also rejected L’Oreal’s assertion that it was improper to view the alleged retaliatory acts collectively. “There is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries,” George wrote. “Enforcing a requirement that each act separately constitute an adverse employment action would subvert the purpose and intent of the statute.” The majority may have given employers a bit of wiggle room for the future by stating in a footnote that requiring the hiring of good-looking workers isn’t always unfair. “Had L’Oreal presented evidence that physical attractiveness was a bona fide occupational qualification for cosmetics sales associates,” George wrote, “or that L’Oreal sales managers were routinely, or even occasionally, required to make employment decisions on the basis of physical attractiveness, the reasonableness of Yanowitz’s belief that Wiswall’s order was discriminatory might be questionable.” L’Oreal’s lawyer, Morgenstein & Jubelirer partner William Carroll, couldn’t be reached for comment. Yanowitz’s lawyer, former state Supreme Court Justice Joseph Grodin, called the decision a “brilliant opinion.” Now a professor emeritus at Hastings College of the Law, he said the ruling “sends a message to California workers that they are allies with the courts in the battle against discrimination in the workplace and that if they stand up against discrimination they will be protected against retaliation no matter what form [it] takes.” Yanowitz’s husband, Herbert Yanowitz, a solo practitioner in San Francisco, said the ruling vindicates his “elated” wife. “This case is a victory for all California employees who put their necks on the line to protect others from discrimination,” he said, “and it vaults the California courts into the forefront of protecting women in the workplace.”

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