Employees can disobey bias-tainted orders

When an employee refuses to carry out an order, supervisors may automatically think such insubordination is worthy of discipline or firing. Not so fast! That initial response, punish the employee, may be dead wrong and legally dangerous. If employees have a reasonable, good-faith belief that what they're being asked to do is illegal, they can refuse to follow through on the directive, and supervisors can't retaliate against the employee for taking that stand.

That's why it's important to train supervisors to ask questions when employees balk at an order or question its appropriateness. Don't jump right into discipline mode. By asking employees why they're refusing an instruction, supervisors can discover if employees believe they're being asked to do something illegal. If the employee is wrong, supervisors can explain why and persuade the person to carry out the order. Either way, supervisors should notify HR when employees object to instructions for reasons that could raise legal risks.

Recent case: Elysa Yanowitz, a L'Oreal regional sales manager, was ordered by her boss to fire a female sales rep and replace her with someone who was "hot." Yanowitz refused and asked her boss for better justification, but he said nothing. The boss soon began subjecting Yanowitz to increased scrutiny and delivered her first bad performance review in 17 years. Yanowitz quit and sued for retaliation under California's job-bias law, which is similar to federal anti-discrimination law.

The California Supreme Court recently sent the case to trial, saying that employers can be held liable for punishing employees who refuse to follow what they believe are illegal orders. Because Yanowitz had a good-faith belief that she was being asked to do something illegal, whether that's true or not, she can pursue a retaliation lawsuit. (Yanowitz v. L'Oreal USA, Cal. S. Ct., No. S115154)