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

Posted 11:55 AM by Michael Fox

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.]

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.

Labels: appearance