Cali: Another urban legend – ugliness is not an issue

Since some of the blogs seem to be buzzing about Yanowitz v. L’Oreal, and claiming that the California Supreme Court recognizes “ugliness” as a protected class, I feel obligated to say that the plaintiff (who, apparently, was pretty, but strong-headed) alleged that she was fired for failing to fire a dark-skinned woman.    Under California state law, retaliation for failing to do something illegal is actionable, or  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 because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”

So, what really happened (or at least based on the facts asserted for purposes of an MSJ) is a hard-headed employee refused to fire a dark-skinned woman, and the hard-headed woman was terminated. Of course, maybe everyone is lying, but that will have to wait for a jury trial, and as the court said:

A trier of fact* * * could find that Wiswall knew that Yanowitz's refusal to comply with his order to fire the sales associate was based on Yanowitz's belief that Wiswall's order constituted discrimination on the basis of sex.

In reading the alleged facts, I probably could conclude that when "Wiswall expressed a preference for fair-skinned blondes and directed Yanowitz to '[g]et me somebody hot,' or words to that effect." he really meant, "get me someone white" and Yanowitz, quite rightly, told someone who was acting like a racist where to go.  "Fair-skinned" as I learned it meant "white."  "Darker skin" meant "black." 

I urge you folks to correct any misconceptions on this issue, because this is one dangerous urban legend.  (It is worth nothing that there are anti-ugliness-discrimination ordinances in some municipalities in Califoria, but those are not an issue here.  But, in case you are interested, the you can read Santa Cruz, Cal., Mun. Code § 9.83.010 (2004) ("It is the intent of the city council, in enacting this chapter, to protect and safeguard the right and opportunity of all persons to be free from all forms of arbitrary discrimination, including discrimination based on age, race, color, creed, religion, national origin, ancestry, disability, marital status, sex, gender, sexual orientation, height, weight or physical characteristic.") and the compliance guidelines for SF)

See, also, Law.com; Cali Chamber of Commerce; SF Chronicle.

Update:  Jottings By An Employer's Lawyer appears to simultaneous agree and disagree with me by saying

Although I agree with S. Cotus that this is really only a retaliation case, the Court does make a statement that at least raises the possibility of "appearance" as a protected class, putting it this way:

Because a trier of fact could find from this evidence that Yanowitz believed [her supervisor's] order was discriminatory as reflecting an instance of disparate treatment on the basis of sex, we have no occasion in this case to determine whether a gender-neutral requirement that a cosmetic sales associate be physically or sexually attractive would itself be violative of the FEHA or could reasonably be viewed by an employee as unlawfully discriminatory. Courts in other jurisdictions have uniformly held that an appearance standard that imposes more stringent appearance requirements on employees of one sex than on employees of the other sex constitutes unlawful sexual discrimination unless such differential treatment can be justified as a bona fide occupational qualification. *** We believe it is clear that such unjustified disparate treatment also would constitute unlawful sex discrimination under the FEHA.

However saying “we have no occasion in this case to determine whether a gender-neutral requirement that a cosmetic sales associate be physically or sexually attractive would itself be violative of the FEHA or could reasonably be viewed by an employee as unlawfully discriminatory” seems to mean that the court specifically did not make ugliness a protected class.  In my world, when a court says that it isn't deciding an issue it means what it says.

Now, let me go a bit further and say this: Who are we kidding? Stores hire cute salespeople. Large lawfirms want cute female associates. (Sure they deny it.)  Some judges only hire cute clerks. (You know who you are.  So do your fellow judges.  A3G is sure she will ("A3G knows that if she ever becomes an A3J, she will hire hunky law clerks -- and have frequent chambers pool parties, with mandatory attendance...")) Law schools tell people to dress well, and have told friends of mine that they simply won’t be hired by large law firms based on their appearance. However, a dear friend of mine, who is a self-described freak of nature was hired by one law firm despite what the Office of Career Development prophesized.

This is a very real form of discrimination.

 However, claiming that you were not hired because you were just isn’t actionable in most places – yet.

Likewise, even though one’s ability to comb one’s hair and present a “professional” appearance should have nothing to do with how good lawyer one is, everyone assumes that it does, and therefore, it is acceptable to not hire people because their mother dresses them funny.  (By the way, if any ugly people who can't dress themselves want to work on AL&P, send an email because there might be a shortage of reporters soon.  Pretty people are welcome, too.)