Silent Whistle Blowers

The California Supreme Court recently made life more difficult for employers who have whistle blowers lurking in the workplace (Yanowitz v. L'Oreal, S115154 (Aug. 11, 2005)). Up until now, our employer clients could assume that an employee would actually need to blow the whistle on a discriminatory workplace practice before he or she could claim to have been retaliated against for whistle-blowing. Our advice could be pretty straightforward: when the whistle blows, come to attention - and do not "retaliate" against the whistle-blower. If no whistle blows, retaliation is not a concern.

Life After Yanowitz

Things are different after Yanowitz. In that case, Ms. Yanowitz, a long term employee of a cosmetics company, was directed by a male supervisor to fire a female employee he did not find attractive and to find someone "hotter." Ms. Yanowitz believed the direction discriminatory since male employees were not subject to an "attractiveness" test. So Ms. Yanowitz did not follow the order - but she never said why she didn't. Neither did she actually accuse anyone of discriminating. Furthermore, the company did not fire her. According to her complaint, the company merely scrutinized her work more rigorously than it had before, stressing her out and ultimately "forcing" her to quit.

The Supreme Court found Ms. Yanowitz's alleged request that the supervisor "justify" his direction to fire the female employee to have, at least possibly, put the employer on notice that she opposed a perceived illegal practice. It was up to the jury to determine whether the "circumstances" established employer's knowledge of plaintiff's unstated opposition, even if the "whistle" was never actually "blown." Justice Chin, in dissent, notes that this is the first time a plaintiff who didn't actually blow the whistle was given whistle blower protection, and suggests that the public policy behind the anti-retaliation law (encouraging employees to speak up about perceived violations in the workplace) is not served by affording a cause of action to an employee who didn't speak up. But Justice Chin's views are not the law.

So what is an employer to do with a disgruntled (possibly poorly performing) employee stewing in his or her cubicle who may be troubled about some perceived illegal conduct in the workplace? Remember, Ms. Yanowitz was not even fired - she was simply criticized; "documented" in the way most employer side employment lawyers encourage their clients to do. As mentioned above, the answer before Yanowitz generally was: "don't ask." If you ask, you'll be told and there will be no more doubt. After Yanowitz, however, an employer may be presumed knowledgeable of an objection that was never actually made out loud. In other words, well-meaning employers can be blind-sided by employees who never complain about actions of which the employers are completely unaware.

Practical Lessons from the Case

Are there any practical ways to avoid the silent whistle blower treatment? At this point, it's difficult to give employers hard and fast rules, but here are a couple of suggestions:

• Investigate the suspect practice first: If you have information suggesting that a stewing employee might be troubled (or claim to be troubled) by a perceived unlawful employer practice, a discreet investigation may be called for - not of the stewing employee, but of the practice in question.


• Treat the silent whistleblower with care: Any action (positive or negative) with respect to the stewing employee should be considered in light of the results of that discreet investigation. That is, (1) is there a problem with the practice in question?, (2) if so, can it be addressed? and (3) if so, can the process of addressing it be disclosed to the "silent whistle-blower"?


• Continue to document legitimate performance issues with your silent whistle blower: Bear in mind that Yanowitz went to the Supreme Court after defendant won at summary judgment. Ms. Yanowitz must still prove that the actions taken against her were in retaliation for her silent whistle blowing. A strong evidentiary showing that such actions were performance related and appropriate may yet win the day for L'Oreal, should the case reach trial.

Unfortunately, the Yanowitz decision does not permit a more straight-forward answer in these situations, and does not suggest any effective general employment practices that will reliably avoid nasty consequences. But we can safely predict that the courts will be dealing with silent whistle blowers a great deal in the coming years and, ultimately, standards will emerge to assist employers, lawyers and judges in determining when an alleged implicit complaint qualifies for protection. At the moment, however, retaliation claims in California have become a lot more unpredictable for employers.

For more information on how Yanowitz can be incorporated into your workplace practice or to discuss a specific whistle blower situation, call Rick Levine at (415) 391-8177 or send him an email.