On August 11, 2005, the California Supreme Court, in Yanowitz v. L’Oreal USA, Inc., held that an employee’s refusal to follow a supervisor’s order that the employee reasonably believes to be discriminatory constitutes protected activity in a retaliation claim under the Fair Employment and Housing Act. In that case, Yanowitz alleged that she refused to carry out an order from a male supervisor to terminate the employment of a female associate who, in the male supervisor’s opinion, was not sufficiently sexually attractive. After she refused to terminate the female sales associate, Yanowtiz claimed she was subjected to heightened scrutiny and hostile adverse treatment. Consequently, Yanowitz filed a lawsuit against the company asserting unlawful retaliation under the Fair Employment and Housing Act.

L’Oreal argued that Yanowitz’ refusal to terminate the sales associate on the basis of her appearance could not amount to protected activity because Yanowitz never informed anyone at the company that she refused to follow the order because she believed it to be discriminatory. The Supreme Court acknowledged that an employee’s unarticulated belief that an employer is engaging in discrimination will not suffice to establish protected conduct in establishing a claim of retaliation.

However, the Court clarified that an employee need not use buzzwords when opposing discrimination and that a court may find opposing activity when the employee’s communications to the employer sufficiently convey the employee’s reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner. The Court concluded that because Yanowitz refused to carry out the order – coupled with her multiple requests for adequate justification – she sufficiently communicated to her supervisor that she believed his order was discriminatory.

The Court further explained that the proper standard for defining an adverse employment action is to evaluate whether an employer’s adverse action materially affects the terms and conditions of employment. The court stated that relatively trivial adverse actions or conduct that, from an objective perspective, are likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions or privileges of employment and, therefore, are not actionable. In contrast, adverse treatment that is likely to impair a reasonable employee’s job performance or prospects for advancement or promotions falls within the antidiscrimination provisions of the Fair Employment and Housing Act.

Yanowitz alleged that the company subjected her to the following adverse employment actions:

  1. unwarranted negative performance evaluations
  2. unwarranted criticism of Yanowitz in the presence of other employees
  3. refusing to allow Yanowitz to respond to allegedly unwarranted criticism
  4. refusing Yanowitz’s request to provide necessary resources and assistance
  5. solicitation of negative feedback from Yanowitz’s staff.

The court held that the foregoing acts, when considered collectively, materially affected the terms, conditions, and/or privileges of employment and, therefore, amounted to a sufficient adverse employment action for purposes of defeating a motion for summary judgment.