## Facts

- Elysa J. Yanowitz worked as a regional sales manager for L’Oreal USA, Inc., supervising a sales force and managing relationships with retail accounts.
- A male supervisor directed Yanowitz to terminate a female sales associate because she was not sufficiently sexually attractive and instructed Yanowitz to find “somebody hot” as a replacement.
- Yanowitz refused to carry out the termination and repeatedly requested a legitimate, performance-based justification for firing the employee.
- Yanowitz did not expressly label the directive as discriminatory or cite FEHA, but she objected to the instruction and declined to implement it.
- After her refusal, Yanowitz alleged that management subjected her to escalating hostility and scrutiny, including seeking negative feedback about her performance, criticizing her management style, issuing critical memoranda, and undermining her authority with subordinates.
- Yanowitz asserted that the workplace conditions caused severe emotional distress; she took disability leave and ultimately left her job, alleging constructive discharge.
- She sued, including a retaliation claim under the Fair Employment and Housing Act (FEHA), Cal. Gov’t Code § 12940(h).

## Issues

1. Whether an employee engages in FEHA-protected activity by refusing to carry out a supervisor’s order the employee reasonably and in good faith believes is discriminatory, when the employee objects but does not explicitly state the order is discriminatory or unlawful.
2. What qualifies as an “adverse employment action” for FEHA retaliation purposes, including whether the trier of fact may consider a series of actions collectively under the totality of the circumstances.
3. What evidentiary showing is sufficient at summary judgment to raise a triable issue that adverse actions were taken because of protected activity, including reliance on circumstantial evidence and reasonable inferences.

## Decision

- The Supreme Court of California affirmed the Court of Appeal’s reversal of summary judgment and remanded for further proceedings.
- The court held that refusing to implement an order reasonably believed to be discriminatory can constitute protected opposition under FEHA, even without an explicit statement that the conduct violates FEHA.
- The court held that “adverse employment action” in FEHA retaliation claims is not limited to ultimate employment decisions and includes conduct that materially affects the terms, conditions, or privileges of employment.
- The court required evaluation of the employer’s conduct under the totality of the circumstances; a series of actions may be actionable in combination even if individual acts might not be actionable alone.
- The court concluded the record raised triable issues on protected activity, materially adverse action, and causal connection, making summary judgment improper.

## Legal Principles

- FEHA’s retaliation provision protects “opposition” to practices forbidden by FEHA, including informal opposition and refusals to participate in reasonably perceived discrimination.
- An employee need not explicitly invoke FEHA or use legal terminology to be protected; the question is whether the employee communicated opposition to conduct the employee reasonably and in good faith believed to be discriminatory.
- “Adverse employment action” for FEHA retaliation includes employer conduct that materially affects the terms, conditions, or privileges of employment; it is not confined to discharge, demotion, or pay cuts.
- Courts must assess adversity under the totality of the circumstances and may consider the cumulative impact of multiple acts.
- Retaliatory causation at the summary-judgment stage may be shown through circumstantial evidence, including timing and patterns of hostility, and reasonable inferences in the employee’s favor.

## Conclusion

The court held that FEHA protects an employee who refuses to carry out a supervisor’s directive reasonably believed to be discriminatory even without an explicit discrimination complaint, and that retaliation may be shown by a cumulative course of materially harmful workplace actions, supported by circumstantial evidence sufficient to defeat summary judgment.


Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028 (2005)