SCOTUS sides – unanimously – with Sarbanes-Oxley whistleblower

It's unanimous!

The US Supreme Court unanimously holds that a Sarbanes-Oxley whistleblower must prove that his protected activity was a contributing factor in the employer’s unfavorable personnel action, but need not prove that his employer acted with “retaliatory intent." Murray v. USB Securities (US Supreme Court 02/08/2024) [Briefs]

UBS terminated Murray shortly after he informed his supervisor that two leaders of the UBS trading desk were engaging in what he believed to be unethical and illegal efforts to skew his independent reporting. He sued under the Sarbanes-Oxley Act, which specifically provides that employers may not “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of ” protected whistleblowing activity.

UBS argued that Murray should lose because he failed to produce any evidence that his supervisor possessed any sort of retaliatory animus toward him. But the Court pointed out that the word "discriminate" does not impose a “retaliatory intent” requirement on whistleblower plaintiffs. The normal definition of “discrimination” is “differential treatment.”

Once the whistleblower shows that the protected activity was a “contributing factor in the unfavorable personnel action,” the burden shifts to the employer to “demonstrat[e], by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of that behavior.”