ADVERSE EMPLOYMENT ACTION MAY ARISE FROM TERMINATION AFTER A REFUSAL TO ACT ON A DISCRIMINATORY DIRECTIVE

(Yanowitz v L'Oreal USA, original opinion @106 CA 4th 1036, Cal Supreme Court opinion Cal SC, 8/11/05; 2005 DAR 9664, 2005WL 1903591)

Yanowitz was a highly rated mid level manager who was directed to terminate an employee because her boss did not find the employee appropriately attractive. Although she did not explain the reason she refused to carry out the order, Yanowitz felt the directive was discriminatory, and refused. The supervisor then, according to Yanowitz, fabricated and solicited negative information as a pretext to termination of Yanowitz. Defendant argued that Yanowitz' conduct was not protected because she did not raise a complaint of discrimination but merely demanded justification for the directive, that she was terminated for cause, and that even if discriminatory, Yanowitz herself was not in a protected class.

Circumstances infer discrimination : The court held that “…when the circumstances surrounding an employee's conduct are sufficient to establish that an employer knew that and employee's refusal to comply…was based on the employee's reasonable belief that the order is discriminatory, and employer may not avoid the reach of the FEHA's anti-retaliation (rules and regulations). The court noted that by repeatedly seeking justification, Yanowitz sufficiently conveyed the she considered the directive to be discriminatory.

Deterrence standard applied to this situation : The court accepted Yanowitz' assertion that an employee may prevail when (she) has been subject to any action that is “reasonably likely to deter employees from engaging in protected activities”. The court also agreed that the deterrence standard may be extended both to employees who are subject to the type of FEHA proscribed discrimination, and to employees who are discriminated against in retaliation for opposing a discriminatory directive.

About Alexander S. Polsky, Esq.

About my ADR practice: The Los Angeles and San Francisco Daily Journal newspapers once wrote: “Alexander S. Polsky, Esq . has demonstrated a unique ability to resolve particularly complex and/or highly emotional cases as a mediator, arbitrator and discovery referee. In doing so, and in naming me one of the Top 20 mediators and arbitrators in California for three consecutive years, this publication and the lawyers who participated in the survey honored my efforts in this field in a most humbling manner. I am equally honored that local bar association annual reviews consistently accord high marks for fairness as an arbitrator and tenacity and commitment as a mediator. I have participated in the resolution of over 7,500 disputes nationwide during my 27 years of practice.

I am available to mediate and arbitrate cases worldwide. In the United States, I have ADR offices (JAMS) in Anaheim, Atlanta, Boston, Chicago, Dallas, Denver, Las Vegas, Los Angeles, New York City, Philadelphia, Sacramento, San Francisco, San Jose, Washington DC.

• My practice is as a dispute resolution professional and as a special master and arbitrator. As such, it covers many disciplines. They include:
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I am pleased to serve on the faculty of the University of Southern California where I designed and deliver a course on Negotiation and ADR. I am equally pleased to deliver training in these areas to law firms, associations and corporations worldwide.

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