The Silent Whistle

A ruling came down from the California Supreme Court yesterday in favor (by a vote of 4 – 2) of an employee who did not follow a directive given to her by her supervisor because she felt it was discriminatory (She was told to fire another employee because the employee was not good looking enough – a case of very poor management on the supervisor’s part). Because she refused the directive, she claimed that she was subject to a hostile environment and supervisory retaliation through various actions. She did not inform anyone (i.e. HR) of her objection to the directive nor did she inform anyone of her concerns around retaliation, however the emotional distress of the environment caused her to go on a stress leave. The company eventually terminated her employment when her leave ran out.

In this case, Yanowitz v. L’Oreal USA, Inc., Chief Justice Ronald George wrote for the majority and stated that an employee refusing to engage in activity “she reasonably believes to be discriminatory constitutes protected activity under the FEHA and that an employer may not retaliate against an employee on the basis of such conduct when the employer, in light of all the circumstances, knows that the employee believes the order to be discriminatory, even when the employee does not explicitly state to her supervisor or employer that she believes the order to be discriminatory.” Justice Ming Chin, one of two dissenting opinions stated quite eloquently, “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.”

It’s not that I disagree with the outcome of this particular case, however what troubles me about this ruling is that it now sets a precedent in which employers are further put under the gun to “know or should have known”. I would feel better about it if the whistleblower actually blew the whistle, as it would make this a little more clearly defined. This ruling now creates more obstacles when an employer is legitimately trying to manage an employee’s performance (either up or out) and the employee claims retaliation.

So what’s a California employer to do? Per Nancy E. Pritikin and Philip L. Ross at the San Francisco office of Littler Mendelson, California employers should:

– Review your policies and make sure that you have “have an express and well-publicized policy prohibiting discrimination, harassment and retaliation.”

– Ensure you “have multiple avenues for employees to raise concerns or complaints regarding discrimination, harassment and other unlawful conduct. Such concerns or complaints should be taken seriously, promptly investigated, and appropriate corrective action taken. Careful attention should also always be given to ensure that the complaining employee is not punished in any way for making the complaint.”

– Make sure to examine an employee’s refusal to follow a directive more closely. “In given cases, prudence may require that an employer initiate further communication with an employee in order to determine whether an inarticulate complaint or resistance to following directions, masks some protected concern on the part of the employee against discriminatory conduct.”

– Keep an eye out for retaliation at all times. “Now, verbal and written criticisms of an employee’s performance as well as other acts which do not themselves have a direct financial impact on an employee, may, in combination with other actions, support a retaliation claim.”

Unfortunately, we’re always going to be vulnerable to California law. All we can do is try to protect against it as much as we can through policies, procedures and good reporting practices. It may be emptying out the ocean with a teaspoon, but it’s a start.