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Managers can refuse bias-tainted orders, court says

by on
in Discrimination and Harassment,Employment Law,Firing,Human Resources

Issue: Courts won't consider a manager "insubordinate" for ignoring a boss's order if the manager believes the order is discriminatory.

Risk: Increases danger of retaliation and discrimination lawsuits.

Action: Inform all managers and executives that they should come to you when they suspect a higher-up may be discriminating.

You'd think you could discipline a manager for insubordination if she didn't follow through on a boss's orders. That's usually the case. But if the manager refuses the order because she argues it would be a discriminatory move, she's protected under federal anti-retaliation laws.

Even more alarming: It doesn't need to be real discrimination. If the manager has a "reasonable, good-faith belief" that what she's asked to do is illegal, she can refuse to follow through on it, and you can't retaliate against her for taking that stand.

Recent case: Elysa Yanowitz's boss ordered her to fire a female employee because she was unattractive, telling Yanowitz to hire someone "hot" instead. When the boss passed by a young blonde woman, he said, "Get me one that looks like that."

Yanowitz refused to terminate the employee, a top performer. The boss began subjecting Yanowitz to increasing scrutiny and poor evaluations, her first bad reviews in 17 years. Soon after, Yanowitz took stress leave and then left the company. She sued for retaliation under California's job-bias law, which is similar to the federal anti-discrimination law.

An appeals court sided with Yanowitz, saying the boss's order equaled sex discrimination.

Reason: A manager's refusal to follow that firing order is a "protected activity," and an employer can't retaliate against her for refusing to go along with it. (Yanowitz v. L'Oreal USA Inc., No. A095474, California Ct App, 2003)

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