Jottings By An Employer's Lawyer

Sunday, August 14, 2005

(Lack of) Beauty Is in the Eye of the Beholder - And Now a Protected Class?

Well actually "ugly" is the new protected class according to fellow blogger J. Craig Williams on his newly re-designed website (which is getting all kinds of critical acclaim from other bloggers) in his post Is *Ugly* A New Class Deserving Of Employment Discrimination Protection?. The basis for the comments is last week's California's Supreme Court decision in Yanowitz v. L'Oreal U.S.A., Inc. (California 8/11/05) [pdf].

The basic facts are simple. The plaintiff had been told by her supervisor to fire a retail employee because she was not "hot" (in the sexually attractive sense) enough. Without ever explicity challenging the order, she did not do so. Ultimately, the employer fired the supervisor. Legally, the Supreme Court was deciding whether a summary judgment granted to the employer should be upheld. But to do so, it had to get through a lot of issues:
  1. First, we must decide whether an employee’s refusal to follow a supervisor’s order (to discharge a subordinate) that the employee reasonably believes to be discriminatory constitutes “protected activity” under the FEHA for which the employee may not properly be subjected to retaliation, when the employee objects to the supervisor’s order but does not explicitly tell the supervisor or the employer that she (the employee) believes the order violates the FEHA or is otherwise discriminatory. [Short answer, yes.]
  2. Second, we must decide how the term “adverse employment action” — a term of art that generally is used as a shorthand description of the kind of adverse treatment imposed upon an employee that will support a cause of action under an employment discrimination statute — should be defined for purposes of a retaliation claim under the FEHA, and whether, in evaluating whether or not an employee was subjected to an adverse employment action under the appropriate standard, each individual sanction or punitive measure to which the employee was subjected must be evaluated separately or instead collectively through consideration of the totality of the circumstances. [Short answer, use a "materiality" rather than the arguably tougher "deterrence" standard.]
  3. On a related point, we must decide whether a plaintiff may invoke the continuing violations doctrine to rely upon allegedly retaliatory acts that occurred outside the limitations period when such acts are related to acts that
    occur within the limitations period prescribed by the FEHA. [Short answer, yes.]
  4. Finally, in light of our conclusions on the foregoing issues, we must determine whether, under the circumstances disclosed by the record in this case, the Court of Appeal properly concluded that the trial court erred in granting summary judgment in favor of the employer. [Short answer, yes, summary judgment for employer was improper.]
Whew! No longer it took 61 pages to get there. For more discussion on the case see Mike McKee's article, Calif. Justices See Retaliation in Makeup Case in The Recorder. And S. Cotus at Appellate Law & Practice, warns that the case does not really create "ugly" as a protected class in his post, Cali: Another urban legend – ugliness is not an issue.

Although I agree with S. Cotus that this is really only a retaliation case, the Court does make a statement that at least raises the possibility of "appearance" as a protected class, putting it this way:

Because a trier of fact could find from this evidence that Yanowitz believed [her supervisor's] order was discriminatory as reflecting an instance of disparate treatment on the basis of sex, we have no occasion in this case to determine whether a gender-neutral requirement that a cosmetic sales associate be physically or sexually attractive would itself be violative of the FEHA or could reasonably be viewed by an employee as unlawfully discriminatory. Courts in other jurisdictions have uniformly held that an appearance standard that imposes more stringent appearance requirements on employees of one sex than on employees of the other sex constitutes unlawful sexual discrimination unless such differential treatment can be justified as a bona fide occupational qualification. (Frank v. United Airlines, Inc. (9th Cir. 2000) 216 F.3d 845, 854-855; Gerdom v. Continental Airlines, Inc. (9th Cir. 1982) 692 F.2d 602, 608 [in bank]; Association of Flight Attendants v. Ozark Air Lines (N.D. Ill. 1979) 470 F.Supp. 1132, 1135; Laffey v. Northwest Airlines, Inc. (D.D.C. 1973) 366 F.Supp. 763, 790.) We believe it is clear that such unjustified disparate treatment also would constitute unlawful sex discrimination under the FEHA.
Earlier the same day this decision was being handed down I was agreeing to give a speech for the Advanced Employment Law Seminar of the State Bar of Texas on "Piercings, Makeup and Appearance - The Changing Face of Discrimination Law." It appears that there will be a lot of issues to comment on. Feel free to pass on any suggestions for inclusion in the paper.


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