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Litigation Chair <a href="https://www.goldbergkohn.com/people/david-chizewer/">David Chizewer</a> is quoted in "Court Examines Intent in Whistleblower Retaliation Case," published October 11, 2023, in <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/surpreme-court-murray-whistleblower.aspx">SHRM.org's HR Daily Newsletter</a>.

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The article concerns a case before the U.S. Supreme Court,&nbsp;<a href="https://www.scotusblog.com/case-files/cases/murray-v-ubs-securities-llc/">Murray v. UBS&nbsp;Securities</a>, which will determine whether whistleblowers alleging retaliation must prove their employer acted with retaliatory intent. During oral arguments on October 10, 2023, the Court analyzed the difference between cause and intent in this context.

As noted in the article, this case is critically important for all public companies and companies that do business with public companies since it includes an alleged violation of the retaliation prohibitions in the Sarbanes-Oxley Act (SOX), and SOX essentially prevents these companies from discriminating against their employees who engage in certain types of whistleblowing. Also noted, litigating SOX claims will be more difficult for employers if the U.S. Supreme Court holds they must disprove retaliatory intent as an affirmative defense.

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Trevor Murray sued UBS Securities, a broker-dealer based in Weehawken, N.J., and its Swiss parent company, UBS AG, alleging that UBS terminated his employment because he reported alleged fraud. He claimed the company violated the whistleblower protections under the Dodd-Frank Wall Street Reform and Consumer Protection Act. He later alleged a violation of the retaliation prohibitions in SOX.

Murray worked as a strategist in UBS's mortgage strategy group. He was laid off as part of a reduction in force prompted by the 2008 financial crisis. UBS rehired him in a similar role in 2011, then laid him off again in 2012 as part of another reduction in force.

Murray claimed he was targeted for layoffs because he reported to his supervisors alleged illegal efforts by colleagues to skew or sway his independent research analysis. UBS said Murray did not qualify as a whistleblower under the Dodd-Frank Act because he didn't allege that he reported the misconduct to the U.S. Securities and Exchange Commission. The company also argued he could not have had a reasonable belief that the conduct he reported was a violation of any applicable law or regulation.

A jury awarded Murray $653,300 in back pay and $250,000 in noneconomic compensatory damages. However, the 2nd U.S. Circuit Court of Appeals reversed that decision and concluded that a whistleblower must prove that the employer acted with retaliatory intent.

Murray's attorney said that first the employee must show that their whistleblowing was a contributing factor in an adverse action, such as firing or demotion. Then the burden shifts to the employer to prove that it would have taken the same action even without the whistleblowing. The employer's knowledge of the whistleblowing plus a proximity in time to the adverse action can show the whistleblowing was a contributing factor to the adverse action, she argued. "Congress believed that employees shouldn't have to have evidence of what was in the head of the decision-maker at the moment of the decision," she said.

Arguing in support of Murray, Anthony Yang, assistant to the solicitor general for the U.S. Department of Justice, said the contributing factor must be the whistleblowing, not some bigger chain of related events that included the whistleblowing. The legal definition of discrimination is differential treatment that injures an individual, and it does not turn on animus or intent to harm the employee, Yang noted.

An attorney representing UBS Securities disagreed, saying Congress did not eliminate a retaliatory intent requirement in SOX by incorporating the contributing factor test. He said looking at causation and intent separately is "fundamental to discrimination law."

In a friend-of-the-court brief, the&nbsp;<a href="https://www.shrm.org/">Society for HR Management</a>&nbsp;(SHRM) said a decision in favor of UBS Securities would promote consistency in federal law and provide clarity for HR professionals about what is and is not retaliation. But a decision supporting Murray would "leave HR professionals, employers, litigants, and courts guessing about what conduct violates SOX, and would also force human resource professionals to become securities experts in order to decipher which standard applies to which conduct," SHRM stated.

During oral arguments, several Supreme Court justices expressed skepticism about the employer's argument, asking how the retaliatory intent standard is not already accounted for in the burden-shifting framework.

Justice Ketanji Brown Jackson said, "What I'm struggling with is trying to understand how causation and intent are different in this world. … It seems to me they both get at the same thing."

However, Justice Clarence Thomas said, "It just seems that the substantive statute provides for but-for causation and has an intent requirement."

Justice Neal Gorsuch suggested the court could conclude whistleblowers only have to show discriminatory intent, not retaliatory intent. "I see discrimination in this statute, and I see whistleblowing activity, and I know there's a causation requirement, but I don't see the retaliation in this statute."

David Chizewer&nbsp;is quoted as saying that employers "should understand that firing an employee in proximity to the employee's good-faith and known whistleblowing is likely to create a presumption that the firing was an illegal retaliation. So there better be a very good excuse for the firing that is independent of the whistleblowing.

"To avoid retaliation," he continued, "all good-faith reports of misconduct should be investigated seriously, and results should be documented. Even more importantly, good-faith whistleblowing should be both encouraged on the front end and rewarded on the back end. A culture of transparency and integrity helps employers spot problems before they become crises."

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