Yanowitz

Plaintiff Elysa J. Yanowitz was a regional sales manager employed by defendant L’Oreal USA, Inc. (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 associate who, in the 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. In bringing this action against L’Oreal, Yanowitz contended, among other matters, that L’Oreal’s actions toward her constituted unlawful retaliation in violation of the provisions of Government Code section 12940, subdivision (h) (section 12940(h)), which forbids employers from retaliating against employees who have acted to protect the rights afforded by the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).

Section 12940(h) makes it an unlawful employment practice for an employer “to discharge, expel, or otherwise discriminate against any person…

I dissent.

Plaintiff alleges she was subjected to adverse employment actions due to her opposition to a personnel order that, she now claims, she believed constituted unlawful discrimination on the basis of sex. She seeks the protection of a statute that prohibits retaliation against a person who opposes a forbidden employment practice. However, until after she filed this lawsuit, she never communicated to her employer her alleged belief that the order was *1063 sexually discriminatory or, indeed, unlawful in any way. This case thus presents the question whether a person can be a whistleblower without blowing the whistle. At least in this case, where the personnel order was not clearly unlawful, I would say no.

The majority concludes that plaintiff may recover damages from her employer for retaliating against her because she failed to carry out a personnel order that she reasonably believed violated the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) even if (1) the order did not, in fact, violate the FEHA; and (2) she never related her belief to her employer. I disagree. The whole point behind giving whistle-blowers special protection is to…

Plaintiff Elysa J. Yanowitz was a regional sales manager employed by defendant L'Oreal USA, Inc. (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 associate who, in the 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. In bringing this action against L'Oreal, Yanowitz contended, among other matters, that L'Oreal's actions toward her constituted unlawful retaliation in violation of the provisions of Government Code section 12940, subdivision (h) (section 12940(h)), which forbids employers from retaliating against employees who have acted to protect the rights afforded by the California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et. seq). [1]

Section 12940(h) makes it an unlawful employment practice for an employer "to discharge, expel, or otherwise discriminate against any…