Los Angeles Employment Lawyers Resource: Yanowitz

2008-06-07T13:58:00.001-07:00

Case No. S115154
Court of Appeal No. A095474
San Francisco Superior Court No. CGC-99-304908

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
___________________________________________

ELYSA J. YANOWITZ,
Plaintiff and Appellant,
v.
L'OREAL USA, INC., formerly known as COSMAIR, INC.,
Defendant and Respondent.
___________________________________________

After a Decision by the Court of Appeal, First Appellate District

On Appeal from a Judgment of the Superior Court,
County of San Francisco
Honorable Ronald Evans Quidachay, Judge
___________________________________________

BRIEF OF U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION AS AMICUS CURIAE
IN SUPPORT OF PLAINTIFF-APPELLANT
___________________________________________

ERIC S. DREIBAND
General Counsel

LORRAINE C. DAVIS
Acting Associate General Counsel

WILLIAM R. TAMAYO VINCENT BLACKWOOD
California Bar No. 084965 Assistant General Counsel
Regional Attorney
EEOC San Francisco District Office ELIZABETH E. THERAN, Attorney
350 The Embarcadero U.S. Equal Employment
Suite 500 Opportunity Commission
San Francisco, CA 94105 1801 L Street, N.W.
Telephone: (415) 625-5645 Washington, D.C. 20507
Facsimile: (415) 625-5609 Telephone: (202) 663-4720
CALIFORNIA COUNSEL OF RECORD Facsimile: (202) 663-7090

TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

INTRODUCTION 1

STATEMENT OF THE CASE 1

ARGUMENT 12
CONSTRUING FEHA'S PROHIBITION ON RETALIATION
TO ENCOMPASS ANY EMPLOYER ACTION THAT
FORESEEABLY WOULD DETER A REASONABLE
PERSON FROM ENGAGING IN PROTECTED ACTIVITY
WILL MAINTAIN A MEANINGFUL THRESHOLD
FOR RETALIATION CLAIMS WHILE ENSURING
EFFECTIVE PROTECTION AGAINST RETALIATION. 12

CONCLUSION 25

CERTIFICATION OF NUMBER OF WORDS 27
TABLE OF AUTHORITIESCASES
Aguilar v. Avis Rent A Car System, Inc., 21 Cal. 4th 121 (1999) 12
Akers v. County of San Diego, 95 Cal. App. 4th 1441 (2002) passim
Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000) passim
Coszalter v. City of Salem, 320 F.3d 968 (9th Cir. 2003) 18
County of Washington v. Gunther, 452 U.S. 161 (1981) 12
Davis v. Goord, 320 F.3d 346 (2d Cir. 2003) 18
Despanie v. Henderson, 32 Fed. Appx. 390, 392 (9th Cir. Mar. 20, 2002)
(unpublished decision) 23
Dilenno v. Goodwill Industrial, 162 F.3d 235 (3d Cir. 1998) 21
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) 17
Franks v. Bowman Transport Co., Inc., 424 U.S. 747 (1976) 12
Glover v. South Carolina Law Enforcement Div., 170 F.3d 411
(4th Cir. 1999) 13
Griffin v. Potter, 356 F.3d 824 (7th Cir. 2004) 18-19
Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) 17
Knox v. Indiana, 93 F.3d 1327 (7th Cir. 1996) 21
Lyons v. England, 307 F.3d 1092 (9th Cir. 2001) 16
Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir. 1997) 23
Mitchell v. Horn, 318 F.3d 523 (3d Cir. 2003) 18
Montandon v. Farmland Industrial, Inc., 116 F.3d 355 (8th Cir. 1997) 19
Mukaida v. Hawaii, 159 F. Supp. 2d 1211 (D. Haw. 2001) 23-24
Power v. Summers, 226 F.3d 815 (7th Cir. 2000) 18
Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) passim
Richards v. CH2M Hill, Inc., 26 Cal. 4th 798 (2001) 24
Robinson v. Shell Oil Co., 519 U.S. 337 (1997) 13, 21-22
Romano v. Rockwell, 14 Cal. 4th 479 (1996) 24
Rutan v. Republican Party, 497 U.S. 62 (1990) 18
Sada v. Robert F. Kennedy Medical Ctr., 56 Cal. App. 4th 138 (1997) 1
Strouss v. Michigan Dep't of Corr., 250 F.3d 336 (6th Cir. 2001) 19, 20
Sweeney v. West, 149 F.3d 550 (7th Cir. 1998) 19-20
Tao v. Freeh, 27 F.3d 635 (D.C. Cir. 1994) 18
Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999) 18
Thomas v. Dep't of Corr., 77 Cal App. 4th 507 (2000) 10, 15
Tran v. Trustees of the State Colleges, 355 F.3d 1263 (10th Cir. 2004) 17
Vasquez v. County of Los Angeles, 307 F.3d 884 (9th Cir. 2002) 10
Vasquez v. County of Los Angeles, 341 F.3d 869 (9th Cir. 2003) 10
Vasquez v. County of Los Angeles, 349 F.3d 634 (9th Cir. 2003) 10, 15, 16
Yanowitz v. L'Oreal USA, Inc., 106 Cal. App. 4th 1036,
131 Cal. Rptr. 2d 575 (2003) passimSTATUTES California Fair
Employment & Housing Act ("FEHA"),
Cal. Gov. Code §§ 12900 et seq. passim
Cal. Gov. Code § 12940(a) 8
Cal. Gov. Code § 12940(h) 8, 11
29 U.S.C. § 626 12
42 U.S.C. § 2000e-2(a) 8-9
42 U.S.C. § 2000e-3(a) 9
42 U.S.C. § 2000e-4 12
42 U.S.C. § 2000e-5 12
42 U.S.C. § 12116 12
42 U.S.C. § 12117 12

OTHER AUTHORITIES
Section 8, Retaliation, 2 EEOC Compliance Manual (BNA) (2003)
(available at http://www.eeoc.gov/policy/compliance.html ) 7-8, 14
2 Wayne R. LaFave, Substantive Criminal Law § 10.4 (2d ed.) 17-18

INTRODUCTION
In this FEHA retaliation case, the Court of Appeal expressly
adopted the legal standard for "adverse action" articulated by the
Equal Employment Opportunity Commission ("Commission" or "EEOC") in
its Compliance Manual, stating that this standard appropriately balances
the competing interests in defining the parameters of unlawful retaliation.
In its brief to this Court, the respondent takes issue with the appellate
court's assessment of the relevant policy considerations and strongly
criticizes the Commission's standard for determining whether employer
retaliation is actionable. Because we believe that the respondent's
characterization of the policy issues at stake is inaccurate, we offer
our views on these issues to this Court.

STATEMENT OF THE CASE
Because the trial court granted summary adjudication in this case,
we summarize the facts in the light most favorable to the plaintiff, the
non-moving party, granting her the benefit of all reasonable inferences.
See Sada v. Robert F. Kennedy Medical Ctr., 56 Cal. App. 4th 138, 148 (1997).
Elysa J. Yanowitz originally went to work for L'Oreal USA, formerly
known as Cosmair, Inc., in 1981. 5 Appen. 1139. In 1986, she became a
regional sales manager for L'Oreal's European Designer Fragrance Division.
Id. In this position, she was responsible for managing L'Oreal's sales force
and dealing with accounts throughout Northern California and the Pacific Northwest.
Id. at 1139-40. In written performance evaluations dating from 1987 through 1996,
Yanowitz's superiors consistently rated her performance as "above expectation" and,
in some cases, just short of "outstanding," the highest possible rating. Id. at
1150-86. In February 1997, Yanowitz was selected Regional Sales Manager of the Year
based on her performance during 1996. Id. at 1140.
In the summer of 1997, Yanowitz's supervisor, Richard Roderick, wrote two
memoranda in which he expressed some concerns about her management and conversational
styles, and described his intention to meet with Yanowitz on his next West Coast
trip to discuss these concerns. 1 Appen. 194, 196. Later that year, in November
1997, L'Oreal merged the European Designer Fragrance Division with the Ralph Lauren
Division to create a new Designer Fragrance Division. 5 Appen. 1140. L'Oreal laid
off some of its regional sales managers at this time, but Yanowitz was retained and
made a regional manager of the new Designer Fragrance Division, a position with
significantly greater job responsibilities. 1 Appen. 185.
Shortly after the restructuring, Yanowitz and John Wiswall, the general
manager for the new Designer Fragrance Division, toured the Ralph Lauren installation
at the Macy's Valley Fair in Santa Clara, California. 5 Appen. 1140-41. After the
tour, Wiswall directed Yanowitz to fire Soraya Djadali, a dark-skinned Ralph Lauren
sales associate, because she was "not good looking enough." Id. Wiswall ordered
Yanowitz to "[g]et me somebody hot," or words to that effect. Id. On a subsequent
return trip to the store, when Wiswall discovered that Djadali had not been fired,
he again directed Yanowitz to fire her. Id. at 1141. When Wiswall and Yanowitz
passed by a young blonde woman on the way out of the store, Wiswall turned to
Yanowitz and said, "God damn it, get me one that looks like that." Id. Yanowitz
never fired Djadali, despite Wiswall's repeated insistence; instead, she repeatedly
asked Wiswall to provide adequate justification for dismissing her. Id. In March
1998, Yanowitz learned that Djadali was among the top sellers of men's fragrances in
the Macy's West chain. Id. Yanowitz never complained to L'Oreal's human resources
department about Wiswall's order, nor did she tell Wiswall directly that his order was
discriminatory. Id. at 1141-42.
Around the same time, in March 1998, one of Yanowitz's subordinates was told
that Wiswall had issues with Yanowitz and wanted to get rid of her. 4 Appen. 1128.
At this point, Roderick, who reported directly to Wiswall, began soliciting negative
information about Yanowitz from her subordinates. Id. at 1125-26. When one subordinate,
Chrissy DeGracia, indicated that she had some "frustrations" in dealing with Yanowitz,
Roderick insisted that DeGracia discuss them with Jane Sears, then the manager of Human
Resources. Id. Roderick also asked DeGracia for names of others, including subordinates
and other business contacts, who were having problems with Yanowitz. Id. DeGracia
originally did not provide any names; Roderick then called her back two weeks later
and told her that it was urgent that she help him get people to come forward with
complaints about Yanowitz. Id. at 1126-27. Roderick repeated his request to DeGracia
in June 1998. Id. at 1127.
Meanwhile, on May 13, 1998, Roderick met with Yanowitz in New York. 5 Appen. 1142.
He opened the meeting by asking Yanowitz, "Do you think I brought you here to fire you?"
Id. Roderick then criticized Yanowitz's "dictatorial" management style and ended the meeting
by saying, "It would be a shame to end an eighteen-year career this way." Id. Between May
and June 1998, Wiswall and Roderick also obtained and audited Yanowitz's travel and expense
accounts. 4 Appen. 1008-1011. In meetings that occurred in June and July, Wiswall screamed
at Yanowitz in front of other regional sales managers and account representatives, told her
that he was "sick and tired of all the fuckups," and said that Yanowitz could not "get it
right." Id. at 1127.
On June 22, 1998, Yanowitz wrote Roderick a memo stating that the Macy's West
team was upset about the lack of television promotion for one of L'Oreal's brands. 4
Appen. 961. The next day, Wiswall wrote a note to Roderick at the bottom of Yanowitz's
memo: "Dick She is writing everything! Are you!!!???" Id. The next week, on June 30,
Roderick wrote three memos documenting separate interactions with or about Yanowitz that
had occurred in May and June 1998. 2 Appen. 298-99, 333; 4 Appen. 918. All three were
addressed to human resources, and all were highly critical of Yanowitz. Id.
On July 16, 1998, Roderick drafted and sent a three-page memo addressed to
Yanowitz. 5 Appen. 1188-90. In the memo, Roderick expressed his "tremendous
disappointment" with the events of the last few weeks and listed five areas
that caused him to express his concern with Yanowitz's overall performance,
including her handling of Polo Sport and Picasso promotions, the state of the
Sacramento market, and the length of a business trip Yanowitz took to Hawaii
in March 1998, as well as her "dictatorial style of conducting business" and
her failure to make "necessary style modifications." Id. Roderick concluded
by telling Yanowitz that her changes must start "immediately" (emphasis in original)
and that he expected a reply to the memo within one week of receipt. Id. In a
memorandum of the same date, Yanowitz responded to Wiswall, asking whether he
wanted to discuss a severance package and stating that he was obviously "making
every effort to find grounds for terminating me." Id. at 1198. Carol Giustino
from Human Resources then set up a San Francisco meeting with Yanowitz and Roderick
for July 22, 1998, rejecting Yanowitz's request that the meeting be postponed in
order to allow her to prepare a written response to Roderick's memo of July 16.
Id. at 1143-44. L'Oreal also declined Yanowitz's request that her attorney-husband
be present at the meeting. Id.
At the meeting Roderick and Giustino questioned Yanowitz, apparently without
reading her ten-page written response to Roderick's July 16 memo. 5 Appen. 1144.
Yanowitz broke down in tears at the meeting. Id. In a memo dated two days later,
Giustino summarized Roderick's criticisms of Yanowitz at the meeting, and recounted
a new, more intensive travel schedule imposed by Roderick. 4 Appen. 951-52. The
new schedule required Yanowitz to visit the San Francisco, Portland, and Seattle
markets once a month, Salt Lake City, Fresno, and Sacramento every other month, and
Hawaii biannually. Id. On July 24, 1998, Yanowitz went out on disability leave
due to stress, and never returned to work at L'Oreal. 5 Appen. 1145-46. Yanowitz's
replacement, Colleen Sanger, did not follow the more intensive travel schedule
established for Yanowitz at the July 22 meeting. Id. at 1145.
Yanowitz filed a charge with the Department of Fair Employment and Housing
("DFEH") on June 25, 1999, alleging that L'Oreal discriminated against her on the
basis of sex, age, and religion, and in retaliation for her refusal to fire the
female employee Wiswall deemed insufficiently attractive. 2 Appen. 421. After
receiving a right-to-sue letter from the DFEH, Yanowitz sued L'Oreal in San Francisco
Superior Court on September 13, 1999, alleging, inter alia, discrimination and
retaliation in violation of FEHA. 1 Appen. 1-11. The trial court granted L'Oreal's
motion for summary adjudication on Yanowitz's FEHA claims in October 2000, 7 Appen.
1762-63, and, after denying Yanowitz's motion for reconsideration, the court entered
judgment on all claims in April 2001. 8 Appen. 2188-92.
Yanowitz appealed to the Court of Appeal, First Division, challenging
the dismissal of only one of her FEHA claims: her retaliation claim. In a decision
dated March 7, 2003, the Court of Appeal reversed the trial court's grant of
summary judgment to L'Oreal on Yanowitz's FEHA retaliation claim. Yanowitz v.
L'Oreal USA, Inc., 106 Cal. App. 4th 1036, 131 Cal. Rptr. 2d 575 (2003). The
court adopted the EEOC's and the Ninth Circuit's Title VII standard for what
constitutes an adverse action, holding that, "under the FEHA, an adverse action
is one that is reasonably likely to deter employees from engaging in the
protected activity." Id. at 596 (citing, inter alia, Ray v. Henderson, 217
F.3d 1234 (9th Cir. 2000); Section 8, Retaliation, 2 EEOC Compliance Manual
(BNA) (2003) (available at http://www.eeoc.gov/policy/compliance.html) [hereinafter
"2 EEOC Compliance Manual § 8"]. The court concluded that the EEOC's "deterrence
test" was the most appropriate standard in light of the statutory purposes of
both the FEHA and Title VII because it was "directly tied to the purpose behind
the FEHA's and Title VII's anti-retaliation provisions: that which is reasonably
likely to chill protected activity is prohibited." Id. at 595. The court observed
that a wide range of retaliatory actions can exert a powerful influence on the quality
of one's work experience, and that such actions may well deter employee opposition in
the workplace even without altering the express terms or parameters of the employee's
job description. Id. The court also observed that both the FEHA and Title VII prohibit
retaliation more broadly than they do discrimination. Id. at 596 (comparing Cal.
Gov. Code § 12940(a) (prohibiting discrimination "against the person in compensation
or in terms, conditions, or privileges of employment") with § 12940(h) (prohibiting
employer "discrimination" against an employee who opposes discrimination)). Accord
42 U.S.C. §§ 2000e-2(a) ("It shall be an unlawful employment practice for an employer
. . . to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment" on the basis of protected characteristics); 2000e-3(a)
("It shall be an unlawful employment practice for an employer to discriminate against
any of his employees or applicants for employment . . . because he has opposed any
practice made an unlawful employment practice by this subchapter, or because he has
made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.").
The court explained that the deterrence test preserves an effective and
important threshold on the kind of adverse action sufficient to support a retaliation
claim. 131 Cal. Rptr. 2d at 596. The court acknowledged that the FEHA was not
intended to remedy "adverse actions that cause displeasure or dissatisfaction, but
would be insufficient to deter employees from engaging in protected activity," id.,
and observed that, in applying the deterrence test, "only non-trivial employment
actions that would deter reasonable employees from complaining about discrimination
will constitute actionable retaliation." Id. (citing Brooks v. City of San Mateo,
229 F.3d 917, 928 (9th Cir. 2000)) (internal quotation marks omitted). The court
also observed that the deterrence test "is not necessarily an easier or more difficult
test to satisfy than other tests. It refocuses the inquiry on the concerns underlying
anti-retaliation laws, whereas 'the severity of an action's ultimate impact (such as
loss of pay or status) goes to the issue of damages, not liability.'" Id. (citing Ray,
217 F.3d at 1243 (internal quotation marks omitted)). In addition, the court noted,
as the Ninth Circuit held in Vasquez v. County of Los Angeles, 307 F.3d 884, 891 (9th
Cir. 2002), that the deterrence test is ultimately an objective one: "whether a
reasonable employee would be deterred from engaging in protected activity by the
employer's conduct." 131 Cal. Rptr. 2d at 596. The court concluded that, viewing
the evidence in the light most favorable to Yanowitz, the campaign Roderick and
Wiswall waged against her was sufficient to support a jury finding of adverse action.
Id.
The court acknowledged that the majority of the federal circuits, as well
as two decisions of the California Court of Appeal, apply some form of "materiality"
standard rather than the deterrence test. Yanowitz, 131 Cal. Rptr. 2d at 592-96
(citing, inter alia, Akers v. County of San Diego, 95 Cal. App. 4th 1441, 1454-55
(2002), and Thomas v. Dep't of Corr., 77 Cal. App. 4th 507, 510-12 (2000)). The
court rejected this approach, however, noting two major problems with the application
of the materiality test: "For one, no clear benchmarks exist for measuring what is
'substantial' or 'material.' For another, this limitation establishes an arbitrary
threshold untethered to what Akers recognizes as the core concern underlying the
FEHA and Title VII antiretaliation provisions: the need to prevent employers from
chilling protected activity." Id.
L'Oreal filed a petition for review with this Court in April 2003, listing
four issues for review. This brief addresses only the first of those issues: "Does
the Court of Appeal's 'deterrence test' set the appropriate standard for determining
whether an employee has been subjected to an adverse employment action in a claim
alleging violation of the anti-retaliation provisions of California Government Code
section 12940(h)?" Petition for Review at 1. This Court granted L'Oreal's petition
in June 2003.

ARGUMENT
CONSTRUING FEHA'S PROHIBITION ON RETALIATION TO ENCOMPASS ANY EMPLOYER ACTION
THAT FORESEEABLY WOULD DETER A REASONABLE PERSON FROM ENGAGING IN PROTECTED ACTIVITY
WILL MAINTAIN A MEANINGFUL THRESHOLD FOR RETALIATION CLAIMS WHILE ENSURING EFFECTIVE
PROTECTION AGAINST RETALIATION.
As this Court has observed, "[t]he express purpose of the FEHA is 'to provide
effective remedies which will eliminate [] discriminatory practices.' In addition,
the Legislature has directed that the FEHA is to be construed 'liberally' so as to
accomplish its purposes." Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal. 4th 121,
129 (1999) (internal citations omitted) (citing Cal. Gov. Code §§ 12920, 12993). Title
VII of the Civil Rights Act of 1964 has a similar purpose. See, e.g., County of Washington
v. Gunther, 452 U.S. 161, 170 (1981) (observing that "Title VII's prohibition of
discriminatory employment practices was intended to be broadly inclusive"); Franks v.
Bowman Transp. Co., Inc., 424 U.S. 747, 763-64 (1976) (noting broad remedial purpose
of Title VII and concomitant broad judicial discretion to fashion relief). Both the
California courts and the federal courts have repeatedly noted the critical importance
of an effective prohibition on employer retaliation against persons who engage in
protected activity under statutes like Title VII and the FEHA, which rely on victim
complaints to initiate enforcement. See, e.g., Akers, 95 Cal. App. 4th at 1455 (noting
that "the Legislature was understandably concerned with the chilling effect of employer
retaliatory actions and mandated that FEHA provisions be interpreted broadly to prevent
unlawful discrimination"); Glover v. South Carolina Law Enforcement Div., 170 F.3d 411,
414 (4th Cir. 1999) ("Section 704(a)'s protections ensure not only that employers cannot
intimidate their employees into foregoing the Title VII grievance process, but also that
investigators will have access to the unchilled testimony of witnesses.").
The United States Supreme Court has rejected an interpretation of Title VII's
retaliation provision that would have undermined its effectiveness in providing
"unfettered access to statutory remedial mechanisms." Robinson v. Shell Oil Co.,
519 U.S. 337, 345-46 (1997) (rejecting interpretation of § 704 of Title VII to prohibit
only retaliation against current employees because, inter alia, it "would be destructive
of [the] purpose of the antiretaliation provision for an employer to be able to retaliate
with impunity against an entire class of acts under Title VII for example, complaints
regarding discriminatory termination").
Thus, the primary policy consideration in interpreting a provision prohibiting
employer retaliation against an individual for complaining about or opposing employment
discrimination should be to ensure that the provision is construed in a way that
encompasses all effective forms of retaliation. That is not to say that either
Title VII or the FEHA should be construed to provide a remedy for every trivial
slight or minor inconvenience suffered by an individual who engaged in protected
activity. 2 EEOC Compliance Manual § 8, at 27 ("petty slights and trivial annoyances
are not actionable" retaliation). As the Ninth Circuit and the California Court of
Appeal have noted, employers have a real and significant interest in their ability
to engage in valid criticism of employees, and an employee's discrimination complaint
should not serve as a "get out of jail free card" for job misconduct. Akers, 95 Cal.
App. 4th at 1455 (citing Brooks, 229 F.3d at 928). Our disagreement with L'Oreal's
position in this case is not about whether there should be a threshold for "adverse
action," but, rather, about how to articulate that threshold.
L'Oreal argues that retaliation should be actionable only if it takes the
form of a "materially adverse employment action." Under L'Oreal's approach, retaliatory
actions that do not take this form would be lawful regardless of whether they were
effective deterrents to employees' willingness to complain about or oppose employment
discrimination. The Court of Appeal, on the other hand, adopting the Commission's
standard, held that retaliation is unlawful if it is "reasonably likely to deter
employees from engaging in protected activity," regardless of the specific form it
takes. 131 Cal. Rptr. 2d at 596. As the court noted, this standard "refocuses the
inquiry on the concerns underlying antiretaliation laws, whereas the severity of an
action's ultimate impact (such as loss of pay or status) 'goes to the issue of damages,
not liability.'" Id. (citing Ray, 217 F.3d at 1243) (internal quotation marks omitted).
The deterrence test adopted by the Court of Appeal in this case provides an
effective means of screening out trivial complaints. Under the deterrence test, a
plaintiff complaining of "immaterial" or "non-adverse" actions will be unable to
succeed in court because she will be unable to establish that such actions would be
likely to deter a reasonable person from complaining. Contrary to the assertions
of the respondent and of amicus curiae California Employment Law Council ("CELC"),
the deterrence test is not purely subjective it includes both objective and subjective
components in considering what would be reasonably likely to deter an employee from
engaging in protected activity. See Yanowitz, 131 Cal. Rptr. 3d at 597 (deterrence
test involves "a case-by-case determination based upon objective evidence") (citing
Thomas, 77 Cal. App. 4th at 510-11); see also Vasquez v. County of Los Angeles, 349
F.3d 634, 646 (9th Cir. 2003) (as amended Jan. 2, 2004) (observing that standard
includes both the subjective behavior of the charging party and the objective component
of reasonable likelihood to deter).
Thus, it is not true that, as CELC maintains in its brief, the deterrence-based
standard for an adverse action amounts to "[whatever] the employee believes . . . is
unfair." CELC Amicus Brief at 8 n.4. The "reasonable likelihood" component of the
standard precludes success by plaintiffs who are chronically malcontent or raise trivial
claims, and its focus on the likely effect of the employer's conduct on the employee,
rather than on the form of that conduct, serves the purpose of the anti-retaliation
provisions more effectively than the materiality standard.
L'Oreal argues that the "reasonableness" component requires a reviewing court
to engage in a "host of assumptions" that make it prohibitively difficult to predict
what a "reasonable" employee would do. Respondent's Brief at 18. However, federal
and state courts at every level in this country routinely apply similar standards in
other areas of the law most notably sexual harassment, constructive discharge, and the
self-defense doctrine in the criminal law. See, e.g., Faragher v. City of Boca Raton,
524 U.S. 775, 787 (1998) (in order to be actionable, "a sexually objectionable environment
must be both objectively and subjectively offensive, one that a reasonable person would
find hostile or abusive, and one that the victim in fact did perceive to be so") (citing
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)); Tran v. Trustees of the State
Colleges, 355 F.3d 1263, 1270-71 (10th Cir. 2004) ("A constructive discharge occurs when
a reasonable person in the employee's position would view her working conditions as
intolerable and would feel that she had no other choice but to quit. . . . The question
is not whether the employee's resignation resulted from the employer's actions, but
whether the employee had any other reasonable choice but to resign in light of those
actions.") (internal citations omitted); 2 Wayne R. LaFave, Substantive Criminal Law
§ 10.4 (2d ed.) ("One who is not the aggressor in an encounter is justified in using
a reasonable amount of force against his adversary when he reasonably believes (a)
that he is in immediate danger of unlawful bodily harm from his adversary and (b) that
the use of such force is necessary to avoid this danger."). Furthermore, in the
closely related area of First Amendment retaliation, many of the federal circuits
regularly assess the meaning of "adverse employment action" in terms of whether such
action would likely deter an employee of ordinary firmness from engaging in protected
conduct. See, e.g., Coszalter v. City of Salem, 320 F.3d 968, 975 (9th Cir. 2003)
(citing Rutan v. Republican Party, 497 U.S. 62, 73 (1990)); Davis v. Goord, 320 F.3d 3
46, 353 (2d Cir. 2003); Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); Power v.
Summers, 226 F.3d 815, 820-21 (7th Cir. 2000); Thaddeus-X v. Blatter, 175 F.3d 378,
394 (6th Cir. 1999); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).
The standard advocated by L'Oreal, on the other hand, which would limit
the prohibition on retaliation to "materially adverse employment actions," is both
arbitrary and underinclusive. It excludes categorically a broad range of adverse
actions that can have a significant impact on an employee and thus can be highly
effective deterrents. Courts applying this test have used it to dismiss claims of
retaliation based on employer actions which reasonably and foreseeably would deter
an employee from complaining. See, e.g., Griffin v. Potter, 356 F.3d 824, 829
(7th Cir. 2004) (citing Seventh Circuit cases rejecting the following, both
standing alone and in combination, as insufficiently material: harder work
assignments, lateral transfers, additional job responsibilities, altered work
hours, negative performance evaluations, unfair reprimands, and increased travel
time); Strouss v. Michigan Dep't of Corr., 250 F.3d 336, 343 n.2 (6th Cir. 2001)
(characterizing as "highly questionable" the district court's holding that the
plaintiff's lateral transfer, which would have made it impossible for the plaintiff
to attend the school of her choice, was an adverse employment action); Montandon v.
Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997) (holding that job transfer
requiring employee to move to another town, "however unpalatable the prospect may have
been to him," was not an adverse action because it did not involve change in pay,
benefits, or job title).
L'Oreal does not dispute that the test it advocates would exclude some
forms of effective employer retaliation. Indeed, L'Oreal appears to argue that
the deterrence test should be rejected precisely because it will make all forms
of effective retaliation unlawful. L'Oreal states that a standard that encompasses
all retaliatory actions that might deter a reasonable person from complaining would
be unduly burdensome on employers because "[i]t could take very little indeed to
reasonably deter an employee from [complaining about discrimination or participating
in other protected activity.] 'A dirty look or the silent treatment might be as
effective at discouraging complaints as demoting an employee.'" Respondent's Brief
at 19 (citing Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998)). On the contrary,
the fact that the "materially adverse" standard does not encompass all forms of
effective retaliation is, by itself, reason enough to reject it.
According to L'Oreal, the deterrence standard is also objectionable because
it requires a case-by-case determination, since the deterrent effect of a particular
action will depend on the circumstances in which that action is taken. L'Oreal
argues that its test should be adopted because it would provide employers with
certainty by considering "only the personnel action and its effect on the terms and
conditions of the plaintiff's employment" without regard for other circumstances that
may amplify the deterrent effect of the challenged action on the plaintiff. See
Respondent's Brief at 17-18. To begin with, the premise of L'Oreal's argument is
incorrect. Most federal courts applying the materially adverse standard do not apply
it in the categorical manner advocated by the respondent. For example, courts
considering whether a lateral transfer constitutes actionable retaliation routinely
consider individual circumstances in determining whether the transfer was "materially
adverse." See, e.g., Strouss, 250 F.3d at 342 ("An employee's rejection of a lateral
transfer is always actionable as an 'adverse employment action' if the conditions of
the transfer would have been objectively intolerable to a reasonable person, thereby
amounting to a constructive discharge.") (internal quotation marks omitted); Dilenno
v. Goodwill Indus., 162 F.3d 235, 236 (3d Cir. 1998) (holding that "a transfer to a
job that an employer knows an employee cannot do may constitute adverse employment
action," even where pay, benefits, and employer's assessment of job equivalency were
the same). See also Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996) ("No one
would question the retaliatory effect of . . . actions like moving the [complainant]
from a spacious, brightly lit office to a dingy closet, depriving the person of
previously available support services (like secretarial help or a desktop computer),
or cutting off challenging assignments. Nothing indicates why a different form of
retaliation namely, retaliating against a complainant by permitting her fellow employees
to punish her for invoking her rights under Title VII does not fall within the statute.")
Furthermore, to the extent that a few courts have taken a more rigid, categorical
approach to the question, that only exacerbates the problem condemned by the Supreme Court
in Robinson v. Shell Oil. Insofar as the prohibition on retaliation is construed in a way
that excludes an entire "class of acts" that may constitute effective deterrents to protected
activity, the fundamental purpose of the retaliation provision is undermined. For example, if
employers know in advance that a lateral transfer without loss of pay can never constitute
actionable retaliation, an employer can retaliate against an employee "with impunity" by
subjecting her to an undesirable lateral transfer. Cf. Robinson, 519 U.S. at 346 (rejecting
limitation of Title VII's anti-retaliation provision to retaliation against current employees
because it would permit employers to "retaliate with impunity" against former employees
challenging their termination).
Thus, if this Court were to adopt the materiality standard, it is highly
unlikely that this standard would bring with it the "clarifying" effect on the law
that L'Oreal and CELC envision. Rather, the materiality standard muddies the waters
of anti-retaliation law by taking the focus away from the relationship between the
employer's actions and the employee's protected conduct and instead requiring courts
to engage in seemingly endless attempts to classify one action or another, devoid of
context, as somehow "material" or not.
L'Oreal and CELC argue that adopting the deterrence test would open the
proverbial floodgates and overwhelm the California courts with specious retaliation
claims. However, they provide no empirical support for this assertion and we are
aware of none. They point to no evidence suggesting, for example, that the federal
courts of the Ninth Circuit, which has adhered to the deterrence standard at least
since Ray was decided in 2000, are more "flooded" with retaliation cases than those
of the other federal circuits. L'Oreal and CELC likewise provide no evidence that
federal courts across the country handled more retaliation claims during the first
three decades of Title VII, before courts first began imposing the material-adversity
limitation on retaliation claims. See Mattern v. Eastman Kodak Co., 104 F.3d 702
(5th Cir. 1997) (first decision applying "materially adverse" standard to private-sector
Title VII retaliation action). Nor does L'Oreal or CELC offer any evidence suggesting
that retaliation claims are more likely to prevail in the Ninth Circuit than in courts
applying a different standard. Because, as discussed above, the EEOC's standard contains
an objective reasonableness component, courts are able to use it effectively to winnow
out trivial retaliation claims. See, e.g., Despanie v. Henderson, 32 Fed. Appx. 390, 392
(9th Cir. Mar. 20, 2002) (unpublished decision) (mere evidence that employee was "upset"
by letter of warning issued by supervisor insufficient to constitute adverse action under
deterrence standard); Brooks, 229 F.3d at 929 (under deterrence test, scheduling plaintiff
on the same shift as an openly hostile coworker did not constitute an adverse action under
the circumstances of that case); Mukaida v. Hawaii, 159 F. Supp. 2d 1211, 1236 (D. Haw. 2001)
(lateral transfer was not adverse action under deterrence test because the plaintiff failed
to introduce "any evidence indicating that the transfer involved anything unfavorable or
that it was not voluntary").
CELC advances another form of the same argument, asserting that this Court's
adoption of the deterrence test will somehow "discourage informal conciliation of
workplace disputes." CELC Amicus Brief at 18. This version of the "floodgates"
argument is equally incoherent and lacking in empirical support. To begin with,
the case cited by CELC, Richards v. CH2M Hill, Inc., 26 Cal. 4th 798 (2001), is
discussing a case, Romano v. Rockwell, 14 Cal. 4th 479 (1996), dealing with the
statute of limitations on FEHA claims, not the standard for what constitutes a
claim. The distinction reveals just how inapposite the Richards case is in this
context: whereas the statute of limitations bears directly on how soon an employee
must file a legal claim, and thereby may spur that employee to file suit at an
earlier date than would otherwise be desirable, the standard at issue here merely
defines what claims are viable. CELC offers no analysis to suggest why the deterrence
test would discourage informal conciliation, and indeed we can think of none.
Insofar as CELC may be suggesting that the mere availability of a viable cause
of action, without regard to timing, precludes conciliation, this suggestion is
patently incorrect: the EEOC conciliates hundreds of cases a year as to which the
employee has a viable claim. In fact, the existence of a viable claim is often
precisely what motivates the parties to engage in effective and successful conciliation.

CONCLUSION
The deterrence test adopted by the Court of Appeal in this case effectively
balances the interests of employees in being free from retaliation and those of
employers in being free to run their businesses and engage in valid criticism
of their employees' performance. It sets a meaningful threshold for "adverse
action" that is familiar from many other areas in the law and comports with the
statutory purpose of FEHA's anti-retaliation provision. Based on the experience
of this agency and the federal courts, there is no reason to think that the parade
of horribles painted by the respondent and by CELC will come to pass should this
Court affirm the decision of the Court of Appeal in this case. On the contrary,
the deterrence test is particularly well suited to effectuating FEHA's goal of
ensuring that employees can challenge discrimination and cooperate with state
and federal agencies in the investigation of their claims, rather than being
silenced out of a reasonable fear of retaliation.

Respectfully submitted,

ERIC S. DREIBAND
General Counsel

LORRAINE C. DAVIS
Acting Associate General Counsel

VINCENT BLACKWOOD
Assistant General Counsel

__________________________
ELIZABETH E. THERAN
Attorney
U.S. Equal Employment
Opportunity Commission
1801 L Street, N.W.
Washington, D.C. 20507
Tel: (202) 663-4720
Fax: (202) 663-7090

WILLIAM R. TAMAYO
California Bar No. 084965
Regional Attorney
EEOC San Francisco District Office
350 The Embarcadero, Suite 500
San Francisco, CA 94105
Telephone: (415) 625-5645
Facsimile: (415) 625-5609
CALIFORNIA COUNSEL OF RECORD

CERTIFICATION OF NUMBER OF WORDS
I, ELIZABETH ELLEN THERAN, declare:
I am an attorney with the U.S. Equal Employment Opportunity Commission,
Office of General Counsel, in Washington, DC. I have applied for admission to
the State Bar of California pro hac vice.
Relying on the word count of the computer program used to prepare this
brief, the brief of the U.S. Equal Employment Opportunity Commission as amicus
curiae contains 5784 words.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on March 3, 2004, at Washington, DC.

___________________________
ELIZABETH E. THERAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Brief of U.S.
Equal Employment Opportunity Commission as Amicus Curiae in Support of Plaintiff-Appellant
was furnished by first-class U.S. mail on March 3, 2004, to the following counsel of
record: Herbert W. Yanowitz, Attorney at Law, 225 Bush Street, 6th Floor, San Francisco,
CA 94104-4207; William J. Carroll, Morgenstein & Jubelirer LLP, 1 Market, Spear Street
Tower, Thirty-Second Floor, San Francisco, CA 94105. Courtesy copies have been furnished
to the following amici curiae: Lawrence A. Michaels, Mitchell Silberberg & Knupp, 11377
West Olympic Blvd., Los Angeles, CA 90064-1683; Charlotte Fishman, Equal Rights Advocates,
1663 Mission Street, Suite 250, San Francisco, CA 94109.

DATE:________________ ___________________________
Elizabeth E. Theran
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4720

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