SUPREME COURT SETS A LOW THRESHOLD FOR CLAIMS OF RETALIATION

It has long been the law in California that an employee claiming retaliation is required to prove all of the following: (a) that she engaged in protected activity, (b) that she was subjected to an adverse employment action, and (c) that there is a causal link between the protected activity and the adverse action. For as long as this has been the test, however, employers and employees have argued over what kinds of actions by employees amount to "protected activity" and the standard for determining what employer actions are considered "adverse employment actions." In a case decided in 2005, Yanowitz v. L?Oreal, 36 Cal.4th 1028 (2005), the Supreme Court had occasion to address both of these issues.

In Yanowitz, the plaintiff was former sales manager for L'Oreal. She claimed that one of her male superiors instructed her to terminate a female employee because he did not find the employee to be attractive enough. According to Yanowitz, her boss told her to "get me somebody hot," or words to that effect. Yanowitz refused to carry out the instruction to fire the female employee, but she never explicitly told anyone that she thought the order was discriminatory and she also never complained to her immediate supervisor or the human resources department about it.

Several months after Yanowitz was instructed to terminate the employee, her direct supervisor began soliciting negative information about her from her subordinates. Her supervisor later met with her and criticized her "dictatorial" management style and told her "it would be a shame to end an eighteen-year career this way." Yanowitz's superiors then audited her travel and expense reports, one of them yelled at her, and her direct supervisor wrote her a memorandum criticizing her performance. Yanowitz viewed the memorandum as an expression of an intent to develop pretextual grounds to terminate her, so she suggested a meeting to discuss a severance package. Two days after the meeting, Yanowitz took a disability leave because of stress, and she never returned.

Yanowitz sued for retaliation. The company argued that her retaliation claim failed because she did not engage in protected activity and because she was not subjected to any adverse employment action. The Supreme Court rejected both arguments.

The Court concluded that Yanowitz's refusal to follow her supervisor's order that she reasonably believed was discriminatory was protected activity, even though Yanowitz never explicitly told her supervisor that she thought the order was discriminatory.

On the issue of what actions constitute "adverse employment actions," the Supreme Court adopted the "materiality" test, which requires an employer's adverse action to materially affect the terms and conditions of employment. However, when it applied that test to the facts of Yanowitz's case, the Court held that the acts to which Yanowitz had been subjected, considered collectively, amounted to adverse action.

Finally, the Court also rejected the company's argument that the Court should only consider the acts that took place in the one-year period before Yanowitz filed her charge with the California Department of Fair Employment and Housing ("DFEH"). Applying the "continuing violations" theory, the Court explained that actions outside the limitations period could be considered if (1) the acts outside the limitations period and the acts within the limitations period were "sufficiently similar in kind," (2) if the acts have occurred with reasonable frequency, and (3) if the acts outside the limitations period have not acquired a "degree of permanence" such that the plaintiff was on notice that further conciliatory efforts would be futile.

The Supreme Court's decision in Yanowitz shows how difficult it can be for employers to defeat retaliation claims. Employers that have any inkling that an employee may be complaining about discrimination or may be refusing to do something because the employee reasonably believes that the action is discriminatory or otherwise illegal should proceed with extreme caution before imposing discipline or taking any other negative job action toward the employee.