Case No. S115154 Court of Appeal No. A095474 San Francisco Superior Court No. CGC-99-304908 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA ___________________________________________ ELYSA J. YANOWITZ, Plaintiff and Appellant, v. L'OREAL USA, INC., formerly known as COSMAIR, INC., Defendant and Respondent. ___________________________________________ After a Decision by the Court of Appeal, First Appellate District On Appeal from a Judgment of the Superior Court, County of San Francisco Honorable Ronald Evans Quidachay, Judge ___________________________________________ BRIEF OF U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT ___________________________________________ ERIC S. DREIBAND General Counsel LORRAINE C. DAVIS Acting Associate General Counsel WILLIAM R. TAMAYO VINCENT BLACKWOOD California Bar No. 084965 Assistant General Counsel Regional Attorney EEOC San Francisco District Office ELIZABETH E. THERAN, Attorney 350 The Embarcadero U.S. Equal Employment Suite 500 Opportunity Commission San Francisco, CA 94105 1801 L Street, N.W. Telephone: (415) 625-5645 Washington, D.C. 20507 Facsimile: (415) 625-5609 Telephone: (202) 663-4720 CALIFORNIA COUNSEL OF RECORD Facsimile: (202) 663-7090 TABLE OF CONTENTS TABLE OF AUTHORITIES ii INTRODUCTION 1 STATEMENT OF THE CASE 1 ARGUMENT 12 CONSTRUING FEHA'S PROHIBITION ON RETALIATION TO ENCOMPASS ANY EMPLOYER ACTION THAT FORESEEABLY WOULD DETER A REASONABLE PERSON FROM ENGAGING IN PROTECTED ACTIVITY WILL MAINTAIN A MEANINGFUL THRESHOLD FOR RETALIATION CLAIMS WHILE ENSURING EFFECTIVE PROTECTION AGAINST RETALIATION. 12 CONCLUSION 25 CERTIFICATION OF NUMBER OF WORDS 27 TABLE OF AUTHORITIESCASES Aguilar v. Avis Rent A Car System, Inc., 21 Cal. 4th 121 (1999) 12 Akers v. County of San Diego, 95 Cal. App. 4th 1441 (2002) passim Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000) passim Coszalter v. City of Salem, 320 F.3d 968 (9th Cir. 2003) 18 County of Washington v. Gunther, 452 U.S. 161 (1981) 12 Davis v. Goord, 320 F.3d 346 (2d Cir. 2003) 18 Despanie v. Henderson, 32 Fed. Appx. 390, 392 (9th Cir. Mar. 20, 2002) (unpublished decision) 23 Dilenno v. Goodwill Industrial, 162 F.3d 235 (3d Cir. 1998) 21 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) 17 Franks v. Bowman Transport Co., Inc., 424 U.S. 747 (1976) 12 Glover v. South Carolina Law Enforcement Div., 170 F.3d 411 (4th Cir. 1999) 13 Griffin v. Potter, 356 F.3d 824 (7th Cir. 2004) 18-19 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) 17 Knox v. Indiana, 93 F.3d 1327 (7th Cir. 1996) 21 Lyons v. England, 307 F.3d 1092 (9th Cir. 2001) 16 Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir. 1997) 23 Mitchell v. Horn, 318 F.3d 523 (3d Cir. 2003) 18 Montandon v. Farmland Industrial, Inc., 116 F.3d 355 (8th Cir. 1997) 19 Mukaida v. Hawaii, 159 F. Supp. 2d 1211 (D. Haw. 2001) 23-24 Power v. Summers, 226 F.3d 815 (7th Cir. 2000) 18 Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) passim Richards v. CH2M Hill, Inc., 26 Cal. 4th 798 (2001) 24 Robinson v. Shell Oil Co., 519 U.S. 337 (1997) 13, 21-22 Romano v. Rockwell, 14 Cal. 4th 479 (1996) 24 Rutan v. Republican Party, 497 U.S. 62 (1990) 18 Sada v. Robert F. Kennedy Medical Ctr., 56 Cal. App. 4th 138 (1997) 1 Strouss v. Michigan Dep't of Corr., 250 F.3d 336 (6th Cir. 2001) 19, 20 Sweeney v. West, 149 F.3d 550 (7th Cir. 1998) 19-20 Tao v. Freeh, 27 F.3d 635 (D.C. Cir. 1994) 18 Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999) 18 Thomas v. Dep't of Corr., 77 Cal App. 4th 507 (2000) 10, 15 Tran v. Trustees of the State Colleges, 355 F.3d 1263 (10th Cir. 2004) 17 Vasquez v. County of Los Angeles, 307 F.3d 884 (9th Cir. 2002) 10 Vasquez v. County of Los Angeles, 341 F.3d 869 (9th Cir. 2003) 10 Vasquez v. County of Los Angeles, 349 F.3d 634 (9th Cir. 2003) 10, 15, 16 Yanowitz v. L'Oreal USA, Inc., 106 Cal. App. 4th 1036, 131 Cal. Rptr. 2d 575 (2003) passimSTATUTES California Fair Employment & Housing Act ("FEHA"), Cal. Gov. Code §§ 12900 et seq. passim Cal. Gov. Code § 12940(a) 8 Cal. Gov. Code § 12940(h) 8, 11 29 U.S.C. § 626 12 42 U.S.C. § 2000e-2(a) 8-9 42 U.S.C. § 2000e-3(a) 9 42 U.S.C. § 2000e-4 12 42 U.S.C. § 2000e-5 12 42 U.S.C. § 12116 12 42 U.S.C. § 12117 12 OTHER AUTHORITIES Section 8, Retaliation, 2 EEOC Compliance Manual (BNA) (2003) (available at http://www.eeoc.gov/policy/compliance.html ) 7-8, 14 2 Wayne R. LaFave, Substantive Criminal Law § 10.4 (2d ed.) 17-18 INTRODUCTION In this FEHA retaliation case, the Court of Appeal expressly adopted the legal standard for "adverse action" articulated by the Equal Employment Opportunity Commission ("Commission" or "EEOC") in its Compliance Manual, stating that this standard appropriately balances the competing interests in defining the parameters of unlawful retaliation. In its brief to this Court, the respondent takes issue with the appellate court's assessment of the relevant policy considerations and strongly criticizes the Commission's standard for determining whether employer retaliation is actionable. Because we believe that the respondent's characterization of the policy issues at stake is inaccurate, we offer our views on these issues to this Court. STATEMENT OF THE CASE Because the trial court granted summary adjudication in this case, we summarize the facts in the light most favorable to the plaintiff, the non-moving party, granting her the benefit of all reasonable inferences. See Sada v. Robert F. Kennedy Medical Ctr., 56 Cal. App. 4th 138, 148 (1997). Elysa J. Yanowitz originally went to work for L'Oreal USA, formerly known as Cosmair, Inc., in 1981. 5 Appen. 1139. In 1986, she became a regional sales manager for L'Oreal's European Designer Fragrance Division. Id. In this position, she was responsible for managing L'Oreal's sales force and dealing with accounts throughout Northern California and the Pacific Northwest. Id. at 1139-40. In written performance evaluations dating from 1987 through 1996, Yanowitz's superiors consistently rated her performance as "above expectation" and, in some cases, just short of "outstanding," the highest possible rating. Id. at 1150-86. In February 1997, Yanowitz was selected Regional Sales Manager of the Year based on her performance during 1996. Id. at 1140. In the summer of 1997, Yanowitz's supervisor, Richard Roderick, wrote two memoranda in which he expressed some concerns about her management and conversational styles, and described his intention to meet with Yanowitz on his next West Coast trip to discuss these concerns. 1 Appen. 194, 196. Later that year, in November 1997, L'Oreal merged the European Designer Fragrance Division with the Ralph Lauren Division to create a new Designer Fragrance Division. 5 Appen. 1140. L'Oreal laid off some of its regional sales managers at this time, but Yanowitz was retained and made a regional manager of the new Designer Fragrance Division, a position with significantly greater job responsibilities. 1 Appen. 185. Shortly after the restructuring, Yanowitz and John Wiswall, the general manager for the new Designer Fragrance Division, toured the Ralph Lauren installation at the Macy's Valley Fair in Santa Clara, California. 5 Appen. 1140-41. After the tour, Wiswall directed Yanowitz to fire Soraya Djadali, a dark-skinned Ralph Lauren sales associate, because she was "not good looking enough." Id. Wiswall ordered Yanowitz to "[g]et me somebody hot," or words to that effect. Id. On a subsequent return trip to the store, when Wiswall discovered that Djadali had not been fired, he again directed Yanowitz to fire her. Id. at 1141. When Wiswall and Yanowitz passed by a young blonde woman on the way out of the store, Wiswall turned to Yanowitz and said, "God damn it, get me one that looks like that." Id. Yanowitz never fired Djadali, despite Wiswall's repeated insistence; instead, she repeatedly asked Wiswall to provide adequate justification for dismissing her. Id. In March 1998, Yanowitz learned that Djadali was among the top sellers of men's fragrances in the Macy's West chain. Id. Yanowitz never complained to L'Oreal's human resources department about Wiswall's order, nor did she tell Wiswall directly that his order was discriminatory. Id. at 1141-42. Around the same time, in March 1998, one of Yanowitz's subordinates was told that Wiswall had issues with Yanowitz and wanted to get rid of her. 4 Appen. 1128. At this point, Roderick, who reported directly to Wiswall, began soliciting negative information about Yanowitz from her subordinates. Id. at 1125-26. When one subordinate, Chrissy DeGracia, indicated that she had some "frustrations" in dealing with Yanowitz, Roderick insisted that DeGracia discuss them with Jane Sears, then the manager of Human Resources. Id. Roderick also asked DeGracia for names of others, including subordinates and other business contacts, who were having problems with Yanowitz. Id. DeGracia originally did not provide any names; Roderick then called her back two weeks later and told her that it was urgent that she help him get people to come forward with complaints about Yanowitz. Id. at 1126-27. Roderick repeated his request to DeGracia in June 1998. Id. at 1127. Meanwhile, on May 13, 1998, Roderick met with Yanowitz in New York. 5 Appen. 1142. He opened the meeting by asking Yanowitz, "Do you think I brought you here to fire you?" Id. Roderick then criticized Yanowitz's "dictatorial" management style and ended the meeting by saying, "It would be a shame to end an eighteen-year career this way." Id. Between May and June 1998, Wiswall and Roderick also obtained and audited Yanowitz's travel and expense accounts. 4 Appen. 1008-1011. In meetings that occurred in June and July, Wiswall screamed at Yanowitz in front of other regional sales managers and account representatives, told her that he was "sick and tired of all the fuckups," and said that Yanowitz could not "get it right." Id. at 1127. On June 22, 1998, Yanowitz wrote Roderick a memo stating that the Macy's West team was upset about the lack of television promotion for one of L'Oreal's brands. 4 Appen. 961. The next day, Wiswall wrote a note to Roderick at the bottom of Yanowitz's memo: "Dick She is writing everything! Are you!!!???" Id. The next week, on June 30, Roderick wrote three memos documenting separate interactions with or about Yanowitz that had occurred in May and June 1998. 2 Appen. 298-99, 333; 4 Appen. 918. All three were addressed to human resources, and all were highly critical of Yanowitz. Id. On July 16, 1998, Roderick drafted and sent a three-page memo addressed to Yanowitz. 5 Appen. 1188-90. In the memo, Roderick expressed his "tremendous disappointment" with the events of the last few weeks and listed five areas that caused him to express his concern with Yanowitz's overall performance, including her handling of Polo Sport and Picasso promotions, the state of the Sacramento market, and the length of a business trip Yanowitz took to Hawaii in March 1998, as well as her "dictatorial style of conducting business" and her failure to make "necessary style modifications." Id. Roderick concluded by telling Yanowitz that her changes must start "immediately" (emphasis in original) and that he expected a reply to the memo within one week of receipt. Id. In a memorandum of the same date, Yanowitz responded to Wiswall, asking whether he wanted to discuss a severance package and stating that he was obviously "making every effort to find grounds for terminating me." Id. at 1198. Carol Giustino from Human Resources then set up a San Francisco meeting with Yanowitz and Roderick for July 22, 1998, rejecting Yanowitz's request that the meeting be postponed in order to allow her to prepare a written response to Roderick's memo of July 16. Id. at 1143-44. L'Oreal also declined Yanowitz's request that her attorney-husband be present at the meeting. Id. At the meeting Roderick and Giustino questioned Yanowitz, apparently without reading her ten-page written response to Roderick's July 16 memo. 5 Appen. 1144. Yanowitz broke down in tears at the meeting. Id. In a memo dated two days later, Giustino summarized Roderick's criticisms of Yanowitz at the meeting, and recounted a new, more intensive travel schedule imposed by Roderick. 4 Appen. 951-52. The new schedule required Yanowitz to visit the San Francisco, Portland, and Seattle markets once a month, Salt Lake City, Fresno, and Sacramento every other month, and Hawaii biannually. Id. On July 24, 1998, Yanowitz went out on disability leave due to stress, and never returned to work at L'Oreal. 5 Appen. 1145-46. Yanowitz's replacement, Colleen Sanger, did not follow the more intensive travel schedule established for Yanowitz at the July 22 meeting. Id. at 1145. Yanowitz filed a charge with the Department of Fair Employment and Housing ("DFEH") on June 25, 1999, alleging that L'Oreal discriminated against her on the basis of sex, age, and religion, and in retaliation for her refusal to fire the female employee Wiswall deemed insufficiently attractive. 2 Appen. 421. After receiving a right-to-sue letter from the DFEH, Yanowitz sued L'Oreal in San Francisco Superior Court on September 13, 1999, alleging, inter alia, discrimination and retaliation in violation of FEHA. 1 Appen. 1-11. The trial court granted L'Oreal's motion for summary adjudication on Yanowitz's FEHA claims in October 2000, 7 Appen. 1762-63, and, after denying Yanowitz's motion for reconsideration, the court entered judgment on all claims in April 2001. 8 Appen. 2188-92. Yanowitz appealed to the Court of Appeal, First Division, challenging the dismissal of only one of her FEHA claims: her retaliation claim. In a decision dated March 7, 2003, the Court of Appeal reversed the trial court's grant of summary judgment to L'Oreal on Yanowitz's FEHA retaliation claim. Yanowitz v. L'Oreal USA, Inc., 106 Cal. App. 4th 1036, 131 Cal. Rptr. 2d 575 (2003). The court adopted the EEOC's and the Ninth Circuit's Title VII standard for what constitutes an adverse action, holding that, "under the FEHA, an adverse action is one that is reasonably likely to deter employees from engaging in the protected activity." Id. at 596 (citing, inter alia, Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000); Section 8, Retaliation, 2 EEOC Compliance Manual (BNA) (2003) (available at http://www.eeoc.gov/policy/compliance.html) [hereinafter "2 EEOC Compliance Manual § 8"]. The court concluded that the EEOC's "deterrence test" was the most appropriate standard in light of the statutory purposes of both the FEHA and Title VII because it was "directly tied to the purpose behind the FEHA's and Title VII's anti-retaliation provisions: that which is reasonably likely to chill protected activity is prohibited." Id. at 595. The court observed that a wide range of retaliatory actions can exert a powerful influence on the quality of one's work experience, and that such actions may well deter employee opposition in the workplace even without altering the express terms or parameters of the employee's job description. Id. The court also observed that both the FEHA and Title VII prohibit retaliation more broadly than they do discrimination. Id. at 596 (comparing Cal. Gov. Code § 12940(a) (prohibiting discrimination "against the person in compensation or in terms, conditions, or privileges of employment") with § 12940(h) (prohibiting employer "discrimination" against an employee who opposes discrimination)). Accord 42 U.S.C. §§ 2000e-2(a) ("It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment" on the basis of protected characteristics); 2000e-3(a) ("It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."). The court explained that the deterrence test preserves an effective and important threshold on the kind of adverse action sufficient to support a retaliation claim. 131 Cal. Rptr. 2d at 596. The court acknowledged that the FEHA was not intended to remedy "adverse actions that cause displeasure or dissatisfaction, but would be insufficient to deter employees from engaging in protected activity," id., and observed that, in applying the deterrence test, "only non-trivial employment actions that would deter reasonable employees from complaining about discrimination will constitute actionable retaliation." Id. (citing Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000)) (internal quotation marks omitted). The court also observed that the deterrence test "is not necessarily an easier or more difficult test to satisfy than other tests. It refocuses the inquiry on the concerns underlying anti-retaliation laws, whereas ‘the severity of an action's ultimate impact (such as loss of pay or status) goes to the issue of damages, not liability.'" Id. (citing Ray, 217 F.3d at 1243 (internal quotation marks omitted)). In addition, the court noted, as the Ninth Circuit held in Vasquez v. County of Los Angeles, 307 F.3d 884, 891 (9th Cir. 2002), that the deterrence test is ultimately an objective one: "whether a reasonable employee would be deterred from engaging in protected activity by the employer's conduct." 131 Cal. Rptr. 2d at 596. The court concluded that, viewing the evidence in the light most favorable to Yanowitz, the campaign Roderick and Wiswall waged against her was sufficient to support a jury finding of adverse action. Id. The court acknowledged that the majority of the federal circuits, as well as two decisions of the California Court of Appeal, apply some form of "materiality" standard rather than the deterrence test. Yanowitz, 131 Cal. Rptr. 2d at 592-96 (citing, inter alia, Akers v. County of San Diego, 95 Cal. App. 4th 1441, 1454-55 (2002), and Thomas v. Dep't of Corr., 77 Cal. App. 4th 507, 510-12 (2000)). The court rejected this approach, however, noting two major problems with the application of the materiality test: "For one, no clear benchmarks exist for measuring what is ‘substantial' or ‘material.' For another, this limitation establishes an arbitrary threshold untethered to what Akers recognizes as the core concern underlying the FEHA and Title VII antiretaliation provisions: the need to prevent employers from chilling protected activity." Id. L'Oreal filed a petition for review with this Court in April 2003, listing four issues for review. This brief addresses only the first of those issues: "Does the Court of Appeal's ‘deterrence test' set the appropriate standard for determining whether an employee has been subjected to an adverse employment action in a claim alleging violation of the anti-retaliation provisions of California Government Code section 12940(h)?" Petition for Review at 1. This Court granted L'Oreal's petition in June 2003. ARGUMENT CONSTRUING FEHA'S PROHIBITION ON RETALIATION TO ENCOMPASS ANY EMPLOYER ACTION THAT FORESEEABLY WOULD DETER A REASONABLE PERSON FROM ENGAGING IN PROTECTED ACTIVITY WILL MAINTAIN A MEANINGFUL THRESHOLD FOR RETALIATION CLAIMS WHILE ENSURING EFFECTIVE PROTECTION AGAINST RETALIATION. As this Court has observed, "[t]he express purpose of the FEHA is ‘to provide effective remedies which will eliminate [] discriminatory practices.' In addition, the Legislature has directed that the FEHA is to be construed ‘liberally' so as to accomplish its purposes." Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal. 4th 121, 129 (1999) (internal citations omitted) (citing Cal. Gov. Code §§ 12920, 12993). Title VII of the Civil Rights Act of 1964 has a similar purpose. See, e.g., County of Washington v. Gunther, 452 U.S. 161, 170 (1981) (observing that "Title VII's prohibition of discriminatory employment practices was intended to be broadly inclusive"); Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 763-64 (1976) (noting broad remedial purpose of Title VII and concomitant broad judicial discretion to fashion relief). Both the California courts and the federal courts have repeatedly noted the critical importance of an effective prohibition on employer retaliation against persons who engage in protected activity under statutes like Title VII and the FEHA, which rely on victim complaints to initiate enforcement. See, e.g., Akers, 95 Cal. App. 4th at 1455 (noting that "the Legislature was understandably concerned with the chilling effect of employer retaliatory actions and mandated that FEHA provisions be interpreted broadly to prevent unlawful discrimination"); Glover v. South Carolina Law Enforcement Div., 170 F.3d 411, 414 (4th Cir. 1999) ("Section 704(a)'s protections ensure not only that employers cannot intimidate their employees into foregoing the Title VII grievance process, but also that investigators will have access to the unchilled testimony of witnesses."). The United States Supreme Court has rejected an interpretation of Title VII's retaliation provision that would have undermined its effectiveness in providing "unfettered access to statutory remedial mechanisms." Robinson v. Shell Oil Co., 519 U.S. 337, 345-46 (1997) (rejecting interpretation of § 704 of Title VII to prohibit only retaliation against current employees because, inter alia, it "would be destructive of [the] purpose of the antiretaliation provision for an employer to be able to retaliate with impunity against an entire class of acts under Title VII for example, complaints regarding discriminatory termination"). Thus, the primary policy consideration in interpreting a provision prohibiting employer retaliation against an individual for complaining about or opposing employment discrimination should be to ensure that the provision is construed in a way that encompasses all effective forms of retaliation. That is not to say that either Title VII or the FEHA should be construed to provide a remedy for every trivial slight or minor inconvenience suffered by an individual who engaged in protected activity. 2 EEOC Compliance Manual § 8, at 27 ("petty slights and trivial annoyances are not actionable" retaliation). As the Ninth Circuit and the California Court of Appeal have noted, employers have a real and significant interest in their ability to engage in valid criticism of employees, and an employee's discrimination complaint should not serve as a "get out of jail free card" for job misconduct. Akers, 95 Cal. App. 4th at 1455 (citing Brooks, 229 F.3d at 928). Our disagreement with L'Oreal's position in this case is not about whether there should be a threshold for "adverse action," but, rather, about how to articulate that threshold. L'Oreal argues that retaliation should be actionable only if it takes the form of a "materially adverse employment action." Under L'Oreal's approach, retaliatory actions that do not take this form would be lawful regardless of whether they were effective deterrents to employees' willingness to complain about or oppose employment discrimination. The Court of Appeal, on the other hand, adopting the Commission's standard, held that retaliation is unlawful if it is "reasonably likely to deter employees from engaging in protected activity," regardless of the specific form it takes. 131 Cal. Rptr. 2d at 596. As the court noted, this standard "refocuses the inquiry on the concerns underlying antiretaliation laws, whereas the severity of an action's ultimate impact (such as loss of pay or status) ‘goes to the issue of damages, not liability.'" Id. (citing Ray, 217 F.3d at 1243) (internal quotation marks omitted). The deterrence test adopted by the Court of Appeal in this case provides an effective means of screening out trivial complaints. Under the deterrence test, a plaintiff complaining of "immaterial" or "non-adverse" actions will be unable to succeed in court because she will be unable to establish that such actions would be likely to deter a reasonable person from complaining. Contrary to the assertions of the respondent and of amicus curiae California Employment Law Council ("CELC"), the deterrence test is not purely subjective it includes both objective and subjective components in considering what would be reasonably likely to deter an employee from engaging in protected activity. See Yanowitz, 131 Cal. Rptr. 3d at 597 (deterrence test involves "a case-by-case determination based upon objective evidence") (citing Thomas, 77 Cal. App. 4th at 510-11); see also Vasquez v. County of Los Angeles, 349 F.3d 634, 646 (9th Cir. 2003) (as amended Jan. 2, 2004) (observing that standard includes both the subjective behavior of the charging party and the objective component of reasonable likelihood to deter). Thus, it is not true that, as CELC maintains in its brief, the deterrence-based standard for an adverse action amounts to "[whatever] the employee believes . . . is unfair." CELC Amicus Brief at 8 n.4. The "reasonable likelihood" component of the standard precludes success by plaintiffs who are chronically malcontent or raise trivial claims, and its focus on the likely effect of the employer's conduct on the employee, rather than on the form of that conduct, serves the purpose of the anti-retaliation provisions more effectively than the materiality standard. L'Oreal argues that the "reasonableness" component requires a reviewing court to engage in a "host of assumptions" that make it prohibitively difficult to predict what a "reasonable" employee would do. Respondent's Brief at 18. However, federal and state courts at every level in this country routinely apply similar standards in other areas of the law most notably sexual harassment, constructive discharge, and the self-defense doctrine in the criminal law. See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (in order to be actionable, "a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so") (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)); Tran v. Trustees of the State Colleges, 355 F.3d 1263, 1270-71 (10th Cir. 2004) ("A constructive discharge occurs when a reasonable person in the employee's position would view her working conditions as intolerable and would feel that she had no other choice but to quit. . . . The question is not whether the employee's resignation resulted from the employer's actions, but whether the employee had any other reasonable choice but to resign in light of those actions.") (internal citations omitted); 2 Wayne R. LaFave, Substantive Criminal Law § 10.4 (2d ed.) ("One who is not the aggressor in an encounter is justified in using a reasonable amount of force against his adversary when he reasonably believes (a) that he is in immediate danger of unlawful bodily harm from his adversary and (b) that the use of such force is necessary to avoid this danger."). Furthermore, in the closely related area of First Amendment retaliation, many of the federal circuits regularly assess the meaning of "adverse employment action" in terms of whether such action would likely deter an employee of ordinary firmness from engaging in protected conduct. See, e.g., Coszalter v. City of Salem, 320 F.3d 968, 975 (9th Cir. 2003) (citing Rutan v. Republican Party, 497 U.S. 62, 73 (1990)); Davis v. Goord, 320 F.3d 3 46, 353 (2d Cir. 2003); Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); Power v. Summers, 226 F.3d 815, 820-21 (7th Cir. 2000); Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). The standard advocated by L'Oreal, on the other hand, which would limit the prohibition on retaliation to "materially adverse employment actions," is both arbitrary and underinclusive. It excludes categorically a broad range of adverse actions that can have a significant impact on an employee and thus can be highly effective deterrents. Courts applying this test have used it to dismiss claims of retaliation based on employer actions which reasonably and foreseeably would deter an employee from complaining. See, e.g., Griffin v. Potter, 356 F.3d 824, 829 (7th Cir. 2004) (citing Seventh Circuit cases rejecting the following, both standing alone and in combination, as insufficiently material: harder work assignments, lateral transfers, additional job responsibilities, altered work hours, negative performance evaluations, unfair reprimands, and increased travel time); Strouss v. Michigan Dep't of Corr., 250 F.3d 336, 343 n.2 (6th Cir. 2001) (characterizing as "highly questionable" the district court's holding that the plaintiff's lateral transfer, which would have made it impossible for the plaintiff to attend the school of her choice, was an adverse employment action); Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997) (holding that job transfer requiring employee to move to another town, "however unpalatable the prospect may have been to him," was not an adverse action because it did not involve change in pay, benefits, or job title). L'Oreal does not dispute that the test it advocates would exclude some forms of effective employer retaliation. Indeed, L'Oreal appears to argue that the deterrence test should be rejected precisely because it will make all forms of effective retaliation unlawful. L'Oreal states that a standard that encompasses all retaliatory actions that might deter a reasonable person from complaining would be unduly burdensome on employers because "[i]t could take very little indeed to reasonably deter an employee from [complaining about discrimination or participating in other protected activity.] ‘A dirty look or the silent treatment might be as effective at discouraging complaints as demoting an employee.'" Respondent's Brief at 19 (citing Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998)). On the contrary, the fact that the "materially adverse" standard does not encompass all forms of effective retaliation is, by itself, reason enough to reject it. According to L'Oreal, the deterrence standard is also objectionable because it requires a case-by-case determination, since the deterrent effect of a particular action will depend on the circumstances in which that action is taken. L'Oreal argues that its test should be adopted because it would provide employers with certainty by considering "only the personnel action and its effect on the terms and conditions of the plaintiff's employment" without regard for other circumstances that may amplify the deterrent effect of the challenged action on the plaintiff. See Respondent's Brief at 17-18. To begin with, the premise of L'Oreal's argument is incorrect. Most federal courts applying the materially adverse standard do not apply it in the categorical manner advocated by the respondent. For example, courts considering whether a lateral transfer constitutes actionable retaliation routinely consider individual circumstances in determining whether the transfer was "materially adverse." See, e.g., Strouss, 250 F.3d at 342 ("An employee's rejection of a lateral transfer is always actionable as an ‘adverse employment action' if the conditions of the transfer would have been objectively intolerable to a reasonable person, thereby amounting to a constructive discharge.") (internal quotation marks omitted); Dilenno v. Goodwill Indus., 162 F.3d 235, 236 (3d Cir. 1998) (holding that "a transfer to a job that an employer knows an employee cannot do may constitute adverse employment action," even where pay, benefits, and employer's assessment of job equivalency were the same). See also Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996) ("No one would question the retaliatory effect of . . . actions like moving the [complainant] from a spacious, brightly lit office to a dingy closet, depriving the person of previously available support services (like secretarial help or a desktop computer), or cutting off challenging assignments. Nothing indicates why a different form of retaliation namely, retaliating against a complainant by permitting her fellow employees to punish her for invoking her rights under Title VII does not fall within the statute.") Furthermore, to the extent that a few courts have taken a more rigid, categorical approach to the question, that only exacerbates the problem condemned by the Supreme Court in Robinson v. Shell Oil. Insofar as the prohibition on retaliation is construed in a way that excludes an entire "class of acts" that may constitute effective deterrents to protected activity, the fundamental purpose of the retaliation provision is undermined. For example, if employers know in advance that a lateral transfer without loss of pay can never constitute actionable retaliation, an employer can retaliate against an employee "with impunity" by subjecting her to an undesirable lateral transfer. Cf. Robinson, 519 U.S. at 346 (rejecting limitation of Title VII's anti-retaliation provision to retaliation against current employees because it would permit employers to "retaliate with impunity" against former employees challenging their termination). Thus, if this Court were to adopt the materiality standard, it is highly unlikely that this standard would bring with it the "clarifying" effect on the law that L'Oreal and CELC envision. Rather, the materiality standard muddies the waters of anti-retaliation law by taking the focus away from the relationship between the employer's actions and the employee's protected conduct and instead requiring courts to engage in seemingly endless attempts to classify one action or another, devoid of context, as somehow "material" or not. L'Oreal and CELC argue that adopting the deterrence test would open the proverbial floodgates and overwhelm the California courts with specious retaliation claims. However, they provide no empirical support for this assertion and we are aware of none. They point to no evidence suggesting, for example, that the federal courts of the Ninth Circuit, which has adhered to the deterrence standard at least since Ray was decided in 2000, are more "flooded" with retaliation cases than those of the other federal circuits. L'Oreal and CELC likewise provide no evidence that federal courts across the country handled more retaliation claims during the first three decades of Title VII, before courts first began imposing the material-adversity limitation on retaliation claims. See Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir. 1997) (first decision applying "materially adverse" standard to private-sector Title VII retaliation action). Nor does L'Oreal or CELC offer any evidence suggesting that retaliation claims are more likely to prevail in the Ninth Circuit than in courts applying a different standard. Because, as discussed above, the EEOC's standard contains an objective reasonableness component, courts are able to use it effectively to winnow out trivial retaliation claims. See, e.g., Despanie v. Henderson, 32 Fed. Appx. 390, 392 (9th Cir. Mar. 20, 2002) (unpublished decision) (mere evidence that employee was "upset" by letter of warning issued by supervisor insufficient to constitute adverse action under deterrence standard); Brooks, 229 F.3d at 929 (under deterrence test, scheduling plaintiff on the same shift as an openly hostile coworker did not constitute an adverse action under the circumstances of that case); Mukaida v. Hawaii, 159 F. Supp. 2d 1211, 1236 (D. Haw. 2001) (lateral transfer was not adverse action under deterrence test because the plaintiff failed to introduce "any evidence indicating that the transfer involved anything unfavorable or that it was not voluntary"). CELC advances another form of the same argument, asserting that this Court's adoption of the deterrence test will somehow "discourage informal conciliation of workplace disputes." CELC Amicus Brief at 18. This version of the "floodgates" argument is equally incoherent and lacking in empirical support. To begin with, the case cited by CELC, Richards v. CH2M Hill, Inc., 26 Cal. 4th 798 (2001), is discussing a case, Romano v. Rockwell, 14 Cal. 4th 479 (1996), dealing with the statute of limitations on FEHA claims, not the standard for what constitutes a claim. The distinction reveals just how inapposite the Richards case is in this context: whereas the statute of limitations bears directly on how soon an employee must file a legal claim, and thereby may spur that employee to file suit at an earlier date than would otherwise be desirable, the standard at issue here merely defines what claims are viable. CELC offers no analysis to suggest why the deterrence test would discourage informal conciliation, and indeed we can think of none. Insofar as CELC may be suggesting that the mere availability of a viable cause of action, without regard to timing, precludes conciliation, this suggestion is patently incorrect: the EEOC conciliates hundreds of cases a year as to which the employee has a viable claim. In fact, the existence of a viable claim is often precisely what motivates the parties to engage in effective and successful conciliation. CONCLUSION The deterrence test adopted by the Court of Appeal in this case effectively balances the interests of employees in being free from retaliation and those of employers in being free to run their businesses and engage in valid criticism of their employees' performance. It sets a meaningful threshold for "adverse action" that is familiar from many other areas in the law and comports with the statutory purpose of FEHA's anti-retaliation provision. Based on the experience of this agency and the federal courts, there is no reason to think that the parade of horribles painted by the respondent and by CELC will come to pass should this Court affirm the decision of the Court of Appeal in this case. On the contrary, the deterrence test is particularly well suited to effectuating FEHA's goal of ensuring that employees can challenge discrimination and cooperate with state and federal agencies in the investigation of their claims, rather than being silenced out of a reasonable fear of retaliation. Respectfully submitted, ERIC S. DREIBAND General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT BLACKWOOD Assistant General Counsel __________________________ ELIZABETH E. THERAN Attorney U.S. Equal Employment Opportunity Commission 1801 L Street, N.W. Washington, D.C. 20507 Tel: (202) 663-4720 Fax: (202) 663-7090 WILLIAM R. TAMAYO California Bar No. 084965 Regional Attorney EEOC San Francisco District Office 350 The Embarcadero, Suite 500 San Francisco, CA 94105 Telephone: (415) 625-5645 Facsimile: (415) 625-5609 CALIFORNIA COUNSEL OF RECORD CERTIFICATION OF NUMBER OF WORDS I, ELIZABETH ELLEN THERAN, declare: I am an attorney with the U.S. Equal Employment Opportunity Commission, Office of General Counsel, in Washington, DC. I have applied for admission to the State Bar of California pro hac vice. Relying on the word count of the computer program used to prepare this brief, the brief of the U.S. Equal Employment Opportunity Commission as amicus curiae contains 5784 words. I declare under penalty of perjury that the foregoing is true and correct. Executed on March 3, 2004, at Washington, DC. ___________________________ ELIZABETH E. THERAN CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Brief of U.S. Equal Employment Opportunity Commission as Amicus Curiae in Support of Plaintiff-Appellant was furnished by first-class U.S. mail on March 3, 2004, to the following counsel of record: Herbert W. Yanowitz, Attorney at Law, 225 Bush Street, 6th Floor, San Francisco, CA 94104-4207; William J. Carroll, Morgenstein & Jubelirer LLP, 1 Market, Spear Street Tower, Thirty-Second Floor, San Francisco, CA 94105. Courtesy copies have been furnished to the following amici curiae: Lawrence A. Michaels, Mitchell Silberberg & Knupp, 11377 West Olympic Blvd., Los Angeles, CA 90064-1683; Charlotte Fishman, Equal Rights Advocates, 1663 Mission Street, Suite 250, San Francisco, CA 94109. DATE:________________ ___________________________ Elizabeth E. Theran U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720