A Protected Class for the Fugly

Usually, the thing to remember in discrimination suits is that you need to have a protected class: race, religion, gender, etc. Only these suspect classes can be used to infringe on an individual's ability to choose who they want to hire/rent to/hang out with. But sometimes discrimination categories can be fluid Have Opinion, Will Travel posted a link today to the California case of Yanowitz v. L'Oreal. Besides her sex and age discrimination claims, Yanowitz alleged that L’Oreal had retaliated against her for refusing to terminate the female employee whom Jack Wiswall (the general manager of the designer fragrance division) considered unattractive. The Court slid this into the "sex discrimination" category, based on the fact Mr. Wiswall had apparently never complained about "unattractive" guys:

L’Oreal does not claim that such disparate treatment on the basis of sex is
permissible under the FEHA, but maintains that the evidence presented at the
summary judgment motion was insufficient to support a reasonable belief that
Wiswall’s order represented an instance of impermissible disparate treatment on
the basis of sex. We disagree. Yanowitz presented evidence that Wiswall ordered
her to terminate a female sales associate simply because he felt the associate was
“not good looking enough,” and directed her to “[g]et me someone hot.” On a
subsequent visit to the Macy’s store, when Wiswall discovered Yanowitz had not
terminated the sales associate, he pointed out a young attractive blonde woman
and stated, “God damn it, get me one that looks like that.” Although Yanowitz
repeatedly requested that Wiswall provide her with “adequate justification” for the
dismissal, he failed to respond to the request. As noted, Yanowitz additionally
stated that she had hired and supervised both male and female sales associates for
a number of years, and never had been asked to fire a male sales associate because
he was not sufficiently attractive. . . .

We conclude that, on this record, a trier of fact properly could find that
Wiswall knew that Yanowitz’s refusal to comply with his order to fire the sales
associate was based on Yanowitz’s belief that Wiswall’s order constituted
discrimination on the basis of sex — that is, the application of a different standard
to a female employee than that applied to male employees — and that her
opposition to the directive thus was not merely an unexplained insubordinate act
bearing no relation to suspected discrimination. . . . A
trier of fact properly could find that by repeatedly refusing to implement the
directive unless Wiswall provided “adequate justification,” Yanowitz sufficiently
conveyed to Wiswall that she considered the order to be discriminatory and put
him on notice that he should reconsider the order because of its apparent
discriminatory nature. . . . Thus, we conclude that Yanowitz presented sufficient
evidence to satisfy the protected activity element of her prima facie case."