May It Please The Court

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May It Please The Court
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MIPTC's Rebuttal to Professor Davis' Yanowitz Debate

See yesterday's post (immediately below) for the lead-in to this post.

The additional facts offered regarding the dark-skinned nature and the sexual attractiveness of the L'Oreal saleswoman in the San Jose Macy's that the New York bosses wanted to fire are a red herring.  They describe the characteristics of an individual secondary to the issue at hand - the saleswoman that the Plaintiff was supposed to terminate, not the Plaintiff in this case, Yanowitz.  Yanowitz herself was neither dark-skinned, nor does the court mention whether she was attractive.  The point of the case pivots on the discrimination that the Plaintiff felt as it related to discrimination against her (Yanowitz), not the saleswoman:  The very definition of discrimination is what the Plaintiff perceives as discriminatory; not what the actor intends or does not intend or directs at someone else.  Here, we're even one step more removed from that issue.  The discrimination was directed at the saleswoman - someone entirely different than the Plaintiff.  The Court mixed apples and oranges.

Here Yanowitz' only two possible claims for a "protected class" discrimination are religion (she's Jewish) and age (she's 53).  In addition, her husband is a lawyer, so presumably she knows exactly what the protected classes are.  Yanowitz knew that attractiveness (call it whatever you like:  "hot," "sexually attractive," "dark-skinned," "blond," or "ugly") was not a generally accepted protected class (and is not in this jurisdiction, California).  California is an at-will state, and no reason is needed to terminate someone.  In both her administrative complaints to L'Oreal and her complaint to the court, Yanowitz argued only the two protected classes of religion and age.  The California Supreme Court's opinion cites those two claims, and says only that Yanowitz believed that her New York bosses were discriminating against the saleswoman based on the saleswoman's attractiveness.  The obvious corollary of that connotation is plain and simple:  ugly.  Yanowitz wasn't discriminated against based either on age or religion; she was terminated because she wouldn't follow her bosses' instructions.

The Court's opinion acknowledges this determination and does not characterize Yanowitz' claims as based in either race discrimination or sexual discrimination.  Those two claims can only belong to the saleswoman, they cannot belong to Yanowitz because she does not possess either one of them; she is not dark-skinned, and in a similar vein, we know nothing from the Court's recitation of the facts whether Yanowitz is attractive.  Those two characteristics, whether protected or not, are irrelevant to Yanowitz' claims.  She based her demand for relief on other, unrelated claims.

The Court itself invented the attractiveness argument and pinned it on a party unrelated to Yanowitz' claim.  The Court reasoned that if Yanowitz believed that the New York bosses were discriminating against the saleswoman based on attractiveness (which we know Yanowitz did believe), and Yanowitz believed that attractiveness was a protected class (without regard to whether it was), then the Court was going to treat Yanowitz's termination as one that fell within a "protected" class.  The next question is whether the Court created another protected class, and the answer is yes.  That class, however, is most properly characterized as a "reasonable-belief-that-the-discrimination-is-constitutionally-prohibited" test.  It doesn't matter whether the discrimination is constitutionally protected, it matters only whether the person that was terminated believed that the discrimination was constitutionally protected.

As just one example, we don't generally protect obesity as a constitutional class.  If someone in California is fired because they're fat, they can't make a constitutional claim.  But, if the person reasonably believed that obesity was constitutionally protected, then that person may have a claim.  Not a good one, but nonetheless a claim.

How hard is it, then, to conclude that ugliness is a protected class?  Not at all.  Should it be?  Agreed that it should not, just like obesity.

Things would have been a lot simpler if the New York bosses had just told Yanowitz to fire the saleswoman without providing a reason.  Yanowitz should have lost her case because her termination was based on her failure to follow instructions, not based on any discrimination directed to her.

Posted by J. Craig Williams on Friday, September 02, 2005 at 11:28 Comments (2)


Comments by J. Craig Williams from United States on Thursday, September 15, 2005 at 14:49 - IP Logged
An order to fire someone in a protected class is unconstitutional if the order is solely because of the person's condition in that class, but your analysis misses two key points. First, the order to fire the person was because the person was not "sexually hot," which is not a protected class. Sexuality applies equally across classes. Certainly here the person to be fired was female, and perhaps there's an argument that could be tied to gender, but the opinion reads that sexuality was the driving factor, not gender. Second, Yanowitz did not believe that the order was unconstitutional. That conclusion was a fiction created by the Court. Yanowitz' complaints about her termination were founded on her age, gender and religious standing. The opinon does not give us any facts about what Yanowitz may have thought about the person that she was ordered to fire. Perhaps it was a secondary factor that the Court grabbed onto, but it was not Yanowitz' primary complaint.
If Yanowitz was acting within the course and scope of her employment (if she had fired the sales person as ordered), it is unlikely Yanowitz would be exposed to personal liability, and we can only speculate what defenses L'Oreal would have offered. The Court shouldn't have reached the question whether she was fired for refusing to perform an unlawful act because the act itself, if followed, wasn't unlawful. Unfortunately, I don't sit on the Court, so my "ruling" is of little consequence. If the opinion is appealed, we'll see if ultimately the Court was wrong.

Comments by John Beaty from United States on Monday, September 12, 2005 at 15:44 - IP Logged
I may be shooting in the dark here, but Yanowitz clearly thought that the order to fire someone in a protected class was 1) unconstitutional (which it is) and 2) would result in YANOWITZ being held liable for the act of discriminating (which is unlikely on the face, but even so, had the saleslady sued L'Oreal, Yanowitz would likely have been thrown under the bus.)
When viewed in this light, Yanowitz' actions become defensible. It is her right to refuse to obey orders that put her at risk, without getting those orders in writing (which her superior would not do, I believe.) I also believe that in CA, even though it is an at-will state, yo cannot be fired for refusing to perform an unlawful act.

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