"Hot" or not dismissal seen as retaliation firing
Published 09/02/05

 If a manager or supervisor has an adverse employment action taken against her for refusing to fire an unattractive subordinate, that manager or supervisor may have a legitimate, unlawful retaliation claim that can go to trial.

This point was illustrated in the August 11, 2005 decision from the Supreme Court of California of Elysa J. Yanowitz v. L'Oreal USA, Inc .

Ms. Yanowitz was the regional sales manager employed by L'Oreal, a prominent cosmetics and fragrance company. Yanowitz alleges that after she refused to carry out an order from a male supervisor to terminate the employment of a female sales associates who, in her supervisor's view, was not sufficiently sexually attractive or "hot", she was subjected to heightened scrutiny and increasingly hostile adverse treatment that undermined her relationship with the employees she supervised and caused severe emotional distress that led her to leave her position.

Yanowitz contended, among other claims, that L'Oreal's actions towards her constituted unlawful retaliation under California's discrimination laws. While this case was under the California employment discrimination statute, a similar legal analysis by a court could be made as to an employer's obligations under the New Hampshire or federal discrimination laws. The California court found that Yanowitz was entitled to a jury trial notwithstanding L'Oreal's position that there is no genuine issue of material fact that should allow the case to go to a jury. Therefore, if the case is not resolved prior to trial, a jury will determine whether or not Yanowitz was unlawfully retaliated against by her male supervisor as a result of her refusing to fire he sales associate.

This decision should not be interpreted by employers to any way indicate that they cannot enforce reasonable dress or grooming codes. This was a case upon which a male supervisor wanted a "hot" female sales associate selling the L'Oreal product.

Therefore the Court found that there was sufficient evidence that the male supervisor's directive to have the insufficiently "hot" female sales associate fired was gender discrimination and therefore Yanowitz could have been unlawfully retaliated against for her refusal to carry out that unlawful order.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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