Question:

I am a mid-level manager at my place of business. My supervisor recently told me to discipline a lower-level employee with a good employment record, and I suspect that this is because of the employee’s religious affiliation. I think this might be discriminatory, but I am afraid to disobey a direct order from my supervisor. At the same time, I am afraid to tell my supervisor why I don’t want to discipline the employee because I am afraid I will lose my job if I accuse him of discrimination. What can I do in this situation?

Answer:

While this area of the law is still emerging, a recent California Supreme Court decision has addressed the situation in which an employee refuses to follow an order that may violate the laws against discrimination. That decision, Yanowitz v. L’Oreal USA, Inc., held that an employee’s refusal to follow a supervisor’s order (to discharge a subordinate) that the employee reasonably believed to be discriminatory constitutes “protected activity” under the California Fair Employment and Housing Act (“FEHA”). As such, the employee may not be retaliated against for failing to follow the order, even if the employee does not explicitly tell the supervisor that he or she believes the order to be discriminatory.

In the Yanowitz case, a regional sales manager for L’Oreal was instructed by her supervisor several times to fire a sales associate for not being sufficiently physically attractive. The sales manager thought this was a discriminatory reason for firing the associate, and she repeatedly refused to follow her supervisor’s orders. The sales manager was eventually terminated, and subsequently sued her employer claiming that she had been retaliated against for disobeying her supervisor’s discriminatory instructions. The California Supreme Court allowed the sales manager’s case to go forward, finding that she may have been unfairly punished for failing to carry out her supervisor’s orders.

In answering your question, there are a couple of important things to consider:

An employee such as yourself may still have a cause of action even if you do not complain or actually tell your supervisor that you think his orders are discriminatory. Under the Yanowitz holding, you are not required to explicitly tell your supervisor why you aren’t following his instructions. Instead, your repeated refusals to obey his orders can be deemed to have sufficiently conveyed to your supervisor that you found his orders to be discriminatory, and to put him on notice that he should reconsider what he is asking you to do. If it would be reasonable to conclude that your supervisor knew you were objecting to his instructions because you thought they were unlawful, your refusal to follow his order may be protected activity under the FEHA.

Secondly, if you are punished for failing to follow your supervisor’s orders, you could potentially have a claim for retaliation even if the orders you’ve been given were not in fact discriminatory. In other words, you may disobey an order if you reasonably believe that order to be illegal, and you may sue for any retaliation suffered as a result regardless of whether the order that was given was actually illegal. The reason behind this rule is that allowing an employer to retaliate against an employee whenever the employee’s belief turns out to be incorrect will deter employees from opposing conduct they believe to be discriminatory (and which, in some cases, may actually be discriminatory). In the interest of public policy, therefore, an employee such as yourself must simply “reasonably believe” that what you are being asked to do is illegal.

In your particular situation, you may want to simply explain to your supervisor that you think the employee in question is doing a good job, and that you’re not sure you understand the reason for the discipline. This will give your supervisor the opportunity to explain to you the reasons behind his instructions.

If you still feel that his motives may be based on the employee’s religious affiliation and if he persists in wanting to discipline the employee, you might remind your supervisor that the employee has a good employment history with the company and that you are concerned about the potential for a lawsuit if the employee feels he is being discriminated against. This way you are not accusing your supervisor of discrimination, but you are communicating the reasonable belief behind your refusal to discipline the employee in question. You might also want to ask someone from your company’s human resources department to evaluate the situation.
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