There are all sorts of anti-retaliation laws that protect employees. Many require that employees who invoke them prove that the employer acted with retaliatory intent.
But not all of them.
Last week, the Supreme Court agreed unanimously in Murray v. UBS Securities that the one that protects whistleblowers who speak up about corporate fraud or securities law violations at publicly traded companies must prove that their protected activity (i.e., whistleblowing) was a contributing factor in the employer’s unfavorable personnel action, but need not prove that his employer acted with “retaliatory intent.”
So, how exactly does an employer retaliate without “retaliatory intent?” I’ll explain.
Murray was a research strategist for UBS, whose job required him to certify that certain financial reports were produced independently and accurately reflected his own views. He claimed that others at the company pressured him to compromise his independence to skew his reports to be more supportive of their business strategies. Murray further alleged that after approaching his supervisor and blowing the whistle, he received pushback, and UBS eventually fired him.
Murray then filed a complaint with the Department of Labor alleging that his termination violated §1514A of Sarbanes-Oxley (SOX) because he was fired in response to his internal reporting about fraud on shareholders. Then, Murray filed an action in federal court.
Murray’s claims went all the way to the jury. At trial, the court instructed the jury that Murray was “not required to prove that his protected activity was the primary motivating factor in his termination or that . . . UBS’s articulated reason for his termination was a pretext.”
The jury found in favor of Murray. So, UBS appealed.
The Second Circuit had a different take than the trial court on appeal. It concluded that “a whistleblower-employee must prove that the employer took the adverse employment action against the whistleblower-employee with retaliatory intent.”
The appeal to the Supreme Court followed, and last week, the Supreme Court reversed the Second Circuit’s decision.
It noted that while SOX makes it unlawful to “discriminate” against an employee for whistleblowing, “that word, however, cannot bear the weight that both the Second Circuit and UBS place on it.” Instead, the “normal definition” of “discrimination” is “differential treatment,” and the employer’s lack of “animosity” is “irrelevant.”
In other words, if Murray had established his whistleblowing contributed to his termination, the burden shifted to UBS to show that it would have terminated Murray anyway.
But not all antiretaliation laws are alike. Employees who claim retaliation based on complaining about discrimination (Title VII), speaking up about pay (FLSA), or taking leave (FMLA) must prove animus motivated their employer’s response.
Not so under SOX.