In Murray v. UBS Securities, LLC, the U.S. Supreme Court delivered a unanimous verdict on February 8, 2024, stating that individuals filing whistleblower retaliation claims under Section 1514A of the Sarbanes-Oxley Act of 2002 are not obligated to demonstrate retaliatory intent on the part of their employers. This ruling overturned a previous decision by the Second Circuit Court of Appeals and reinstated a jury's favorable verdict for the plaintiff. The ruling definitively establishes that plaintiffs are only required to prove that their protected whistleblowing activity influenced their employers' subsequent adverse actions, regardless of the degree of influence. The Court emphasized that this burden is intentionally less stringent than typical standards.
Section 1514A(a) prohibits employers from engaging in various discriminatory actions against employees due to their protected whistleblowing activities. The section incorporates a mandatory burden-shifting framework outlined in another federal statute. According to this framework, a whistleblower plaintiff must demonstrate that their protected whistleblowing activity played a role in the adverse employment action alleged in the complaint. Once demonstrated, the burden shifts to the employer, who must prove "by clear and convincing evidence" that they would have taken the same action even without the protected activity.
At the district court level, the jury concluded that the plaintiff successfully demonstrated that his protected actions played a role in his job termination and that UBS failed to prove it would have terminated him regardless of these actions. UBS subsequently sought judgment as a matter of law, contending that under Section 1514A(a), the plaintiff needed to establish that his manager, who made the termination decision, harbored retaliatory motives towards him for whistleblowing, and that dismissal was justified. UBS argued that the jury was inadequately instructed on this requirement. However, the district court rejected UBS' motion. On appeal, the Second Circuit overturned the decision, asserting that the language "discriminate ... because of" in Section 1514A(a) necessitates a demonstration of "retaliatory intent," which it defined as a form of animosity.”
In the Supreme Court opinion authored by Justice Sonia Sotomayor, two primary justifications were outlined for the ruling that the contributing factor test does not necessitate plaintiffs to establish their employers' retaliatory intent. Firstly, the Court noted that the statutory language does not explicitly require retaliatory intent, and the phrase "discriminate ... because of" in Section 1514A(a) does not inherently imply it. The term "discriminate" denotes disparate treatment due to a protected characteristic, rendering animosity irrelevant. Secondly, the Court emphasized that the statute's mandated burden-shifting framework, as prescribed by Congress, is the exclusive method for determining whistleblower discrimination. Therefore, imposing an additional burden on plaintiffs to prove retaliatory intent would be incompatible with this framework. The Court recognized that while the contributory factor test might not hold employers accountable for legitimate, non-retaliatory decisions, it is intentionally less protective of employers, aligning with Congress's policy decision that whistleblowing should not factor into employers' decisions.
Justice Samuel Alito issued a concurring opinion, joined by Justice Amy Coney Barrett, aimed at simplifying the understanding of Section 1514A(a) and reaffirming that the rejection of an "animus" requirement does not eliminate intent from the statute. Instead, plaintiffs are still required to demonstrate discriminatory intent. The concurring opinion underscores the crucial distinction between "retaliatory intent" and plain "intent," highlighting that plaintiffs must still show that their protected conduct played a role in the adverse decision. Thus, while plaintiffs are not obligated to prove retaliatory intent or animosity, intent remains relevant in establishing liability.
IN CONCLUSION
The Murray decision yields two significant points. Firstly, it reaffirms that whistleblowing plaintiffs are not required to demonstrate retaliatory intent, although this was generally understood in most jurisdictions prior to the Court's ruling. However, the more crucial aspect, looking ahead, is the unanimous stance taken by the U.S. Supreme Court regarding the relatively low and employer-unfriendly burden imposed on plaintiffs to prove whistleblower discrimination, intentionally designed as such. This decision implies a shift in focus within whistleblower litigation, where less emphasis will be placed on plaintiffs' initial burden of proving their whistleblowing activity's role in adverse actions, and greater attention will be directed towards causation, placing the burden on employers to demonstrate that they would have taken the same adverse action even without the protected activity.
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