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Employee Rights Attorney Frank Pray

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Newport Beach CA 92660

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Whistleblower Retaliation

The Law --- Whistleblower Retaliation

Yanowitz v. L'Oreal USA, Inc. (Aug. 11 2005--Supreme Court of CA):
  • What Happened: Elysa Yanowitz was a regional sales manager employed by cosmetics company L'Oreal. She alleged her male boss told her to fire a female sales associate the boss described as sexually unattractive, or "not hot". She alleged she refused to carry out the order and was harassed by the boss because of her refusal. She claimed the workplace became so hostile that she was forced to quit.
  • The Issues:
    • Issue One: Was Yanowitz a "whistle-blower"? After all, she didn't "blow the whistle" by making an explicit complaint.
    • Issue Two: If a whistle-blower, was Yanowitz refusing to do something illegal? After all, there is no law protecting "ugly" people per se.
    • Issue Three: If a whistle-blower, and if protected, did Yanowitz suffer a sufficient loss to have been legally "damaged" or injured? (She wasn't fired, demoted or transferred).
    • Issue Four: Did Yanowitz present evidence that the employer's "extra scrutiny" and criticism of her work was motivated by retaliation?
  • The Holdings:
    • Holding One: Yanowitz was a whistle-blower because her refusal to fire could be reasonably understood by her boss to be a resistance to sex discrimination, especially because she repeatedly challenged him to state justification for the directive.
    • Holding Two: "Not hot" in the context of the statement meant sexually unattractive, a standard not imposed on men by the boss.
    • Holding Three: A pattern of harassment and career damaging criticisms can collectively produce real and substantial injury. The months of undermining, undercutting, and demeaning actions derailed Yanowitz's career.
    • Holding Four: Yanowitz produced evidence showing that her bosses criticisms were based on lies. Especially strong evidence was that her boss solicited negative information about her, berated her publicly, and threatened to terminate her.

What You Can Do

  • This case relaxes the burden of proving you "protested" an illegal discrimination, but it is still advisable to use the company's policy to make a "formal" written complaint to the Human Resources Department.
  • This case is clear that a complaint doesn't have to use any particular words to be a protected complaint if the context and circumstances, when viewed with common sense, show that the complaint is about discrimination. Still, if you believe the actions are discriminatory, why not be clear and direct? Yes, there is a potential for retaliation or "blacklisting", but Yanowitz, and many like her, know when the line has already been crossed. If you think your silent resistance to an illegal act will gain nothing further by silence, make your complaint explicit.
  • When you're in the midst of the storm, it is difficult to think beyond the immediate need for survival. However, if you suspect that work criticisms are not just unfair, but retaliatory, then document them for future use in presenting your claim to Human Resources, and if necessary, for use in litigation if the company does not correct the problem. It is advisable to keep your personal log away from work, and off company computer files.
  • Many retaliation and discrimination cases turn on proof of "pretext". This word simply means that the employer is lying when it claims your work performance did not meet its reasonable expectations. You should insist on clarification of the expectations. You should protest if you believe the expectations are unrealistic and designed to set you up for failure. You should seek feedback from your supervisor concerning your performance so as not to be surprised by a sudden criticism that you did not follow directions. You should seek an independent oversight of your performance according to plan, perhaps by another unbiased manager or Human Resources. You should be clear and direct if you believe a performance improvement plan is being used as a device to force your failure and/or resignation.
  • Sadly, many Human Resource departments show no independence or integrity in opposing likely illegal management practices. Do not necessarily rely on the professionalism of the Human Resources department to conduct a fair and thorough investigation of your complaint. Frankly, some H.R. managers use the appearance of an investigation to create a record the company will use to defend itself later against facts it knows or should know prove likely discrimination or retaliation.

Conclusion

The 2005 CA Supreme Court decision in the Yanowtiz case is good for employees. It recognizes that in the real world, employers seek to conceal their illegal purposes by false, ongoing work criticisms, often with the intent of forcing an employee to quit, and if that fails, to fire the employee based on a "paper trail". You can protect yourself by challenging the attacks against you with the truth. Document your good performance, and document the lies and tactics being used against you. Emotionally, this employer harassment can be devastating. Seek help and support from friends, family, your church, temple, or mosque, and if necessary seek professional medical care. Many times I am able to help clients understand their rights, and to suggest ways of fighting back, before they reach the point of being fired or forced to quit.
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