Reprinted from the January 1, 2006 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

Hotheaded Boss Makes Not-So-Hot Hiring Demand

Every manager knows that it’s illegal to retaliate against an employee who has filed a formal discrimination complaint. What every manager may not know is when, exactly, an employee is covered after a not-so-formal complaint. The following case shows the difficulties a manager may face in recognizing illegal retaliation.

MANAGER TURNS UP HEAT

“I want you to fire Liz Hubble. She’s not attractive enough to work here,” manager Ward Eckley said about the cosmetics sales clerk.

“What do you mean? She’s an excellent worker. We don’t hire people based on looks,” assistant manager Sophia Tobin said in shock.

“I don’t care about how well she does her job. Fire her and get me somebody hot,” Eckley ordered.

Appalled by the manager’s request, Tobin did not fire the employee. A week later, Eckley returned from a business trip. He was not happy that the “unattractive” employee still worked there.

“Why didn’t you do what I asked?” he questioned Tobin.

“I don’t believe it’s right to fire someone just because you don’t think she’s good-looking enough,” Tobin defiantly said.

“I don’t care what you think. I want her gone by the end of the week.”

The next day, the two attended a sales meeting with a client. As they left the meeting, they passed a woman that made Eckley’s head turn.

“You see her? She’s young, attractive...very sexy. By the way, did you fire Hubble yet?” he asked.

“No, I haven’t,” Tobin responded.

“What are you waiting for? Get me someone that looks like that!” he yelled.

“No! I won’t, unless you give me adequate justification for firing Liz,” she demanded. “How she looks is not enough.”

The manager didn’t comply with Tobin’s demands to justify his own demand, but continued to pressure her to fire Hubble and hire someone higher on his attractiveness scale. Because Tobin wouldn’t comply, he made her work life even more difficult by putting extra pressure and scrutiny on her. He sought out negative feedback from other managers about her, gave her low performance ratings, audited her expense reports, and criticized her about her work. It all came to a boiling point one day.

“I’m sick and tired of all your screw- ups,” Eckley yelled at her in front of the staff. “You can’t get anything right!”

LEGAL HEAT IS ON

Eckley’s frequent harsh treatment drove Tobin to take stress-related disability leave, from which she never returned. That wasn’t the last the company heard from her, though. She filed a retaliation claim under California’s anti-discrimination law.

She argued that she would not follow the manager’s termination order because she believed it constituted sex discrimination. The company argued that Tobin did not have a valid retaliation complaint because she hadn’t expressed a discrimination concern (until now); besides, physical appearance is not a protected category under the law. An appeals court disagreed and gave life to Tobin’s retaliation claim. Here’s why.

• Even though discrimination based on physical appearance is not prohibited by the state law, Tobin reasonably and in good faith believed Eckley’s request was unlawful.

• Despite the lack of a formal discrimination complaint, Tobin put Eckley on notice of her concerns by asking for “adequate justification” of his termination order.

• Eckley’s treatment of Tobin (e.g., criticism, low ratings, humiliation) constituted an adverse employment action because, collectively, they adversely and materially impacted the terms and conditions of her employment.

TOO HOT TO HANDLE

When an employee expresses concerns regarding an employment decision, be careful that you don’t get too hot under the collar. A wrong reaction can easily turn a simple disagreement into a tough legal battle. Keep these lessons in mind.

• An employee does not have to explicitly state that he/she believes discrimination has occurred. Read between the lines: Does the employee’s complaint allude to unlawful conduct?

• The employee’s belief that unlawful conduct has occurred does not have to be accurate. Examine: Has the employee acted reasonably and in good faith?

• Retaliation does not only take the form of extreme actions, such as termination or demotion. Beware: Courts will examine the entire spectrum of employment actions and their effects on an employee’s performance or opportunity for advancement.
  

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