Cal Supreme Court says if the boss is screwing someone else you may have a case of sexual harassment  

redmustang91 57M  
8818 posts
8/13/2005 3:24 pm

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3/5/2006 9:27 pm

Cal Supreme Court says if the boss is screwing someone else you may have a case of sexual harassment

The Cal. Supreme court just overturned a summary judgment sending a retaliation sex harassment case to the jury. Facts are complicated, but the supervisor refused to fire a woman who was not that good looking and she did not officially complain, but got negative evaluations thereafter. The Supreme Court said refusing to fire an ugly but satisfactory worker could be seen as following the law and then retaliation was illegal:

-Labor and Employment Law-
Employee who reasonably believes that she has been ordered by a superior to engage in unlawful discrimination may not, under the Fair Employment and Housing Act, be retaliated against for "opposing" such conduct, regardless of whether such actions would actually constitute unlawful discrimination. Employee’s opposition to unlawful discrimination need not necessarily include explicit notification to superiors of her belief that the order is unlawful. Trier of fact may find from totality of circumstances that employee’s refusal to carry out the order was based on a reasonable belief that it was unlawful and that employer knew employee held that belief. Evidence that superior ordered plaintiff, a retail sales manager, to terminate a female sales associate simply because he felt the associate was "not good looking enough" and directed her to "[g]et me someone hot;" that when superior discovered plaintiff had not terminated the sales associate, he pointed out a young attractive blonde woman and instructed her to "get me one that looks like that;" that superior failed to respond to plaintiff’s repeated requests that he provide her with "adequate justification" for the associate’s dismissal; and that plaintiff, who had hired and supervised both male and female sales associates for a number of years, had never had been asked to fire a male sales associate because he was not sufficiently attractive was sufficient--for purposes of resisting summary judgment--to support a reasonable belief that superior’s order represented an instance of impermissible disparate treatment on the basis of sex. To maintain an action under the antiretaliation provision of FEHA, employee must demonstrate--taking into account the unique circumstances of the affected employee as well as the workplace context of the claim--that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment, rather than simply that the employee has been subjected to an adverse action or treatment that reasonably would deter an employee from engaging in the protected activity. In a retaliation case, FEHA statute of limitations begins to run when an alleged adverse employment action acquires some degree of permanence or finality. Reasonable trier of fact could find that solicitation of negative information from plaintiff's subordinates, criticism of plaintiff both verbally and in written memos based in part on the negative information obtained from her subordinates, and subsequent refusal to allow plaintiff to answer charges leveled against her were similar in kind and occurred with sufficient frequency to constitute a continuous and temporally related course of conduct as to which limitations period did not begin to run prior to employer’s final discrete act of retaliation. Evidence that plaintiff received negative performance reviews both before and after the incident on which retaliation claim was based was not sufficient in itself to support grant of summary judgment in defendant’s favor. Plaintiff raised triable claim that alleged deficiencies in performance were pretext for retaliation by presenting evidence that many of the problems identified in the negative performance reviews had been associated with plaintiff in earlier years but that same performance reviews consistently rated plaintiff highly and that plaintiff had, a year prior to the incidents of alleged retaliation, received an award for outstanding performance.
Yanowitz v. L’Oreal USA, Inc. - filed August 11, 2005

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