Episode description

Welcome to Supreme Court Opinions. In this episode, you’ll hear the Court’s opinion in Murray v UBS Securities, LLC.

In this case, the court considered this issue: Under 18 U-S-C § 1514A, must a whistleblower prove his employer acted with “retaliatory intent” as part of his case in chief?

The case was decided on February 8, 2024.

The Supreme Court held that a whistleblower who invokes §1514A 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.” Justice Sonia Sotomayor authored the unanimous opinion of the Court.

The Sarbanes-Oxley Act of 2002 includes a provision that protects whistleblowers, explicitly prohibiting employers from engaging in retaliation, such as firing, demoting, suspending, threatening, harassing, or discriminating in any way against an employee's employment conditions “because of” the employee's engagement in protected whistleblowing activities. A whistleblower must first demonstrate that their whistleblowing was a significant factor in the alleged adverse employment action, and then the burden shifts to the employer, who must prove that they would have made the same adverse employment decision regardless of the whistleblower's actions.

First, the word “discriminate” in the statute does not inherently require “retaliatory intent,” which refers to animus or prejudice. Further, to require a whistleblower to prove “retaliatory intent,” as UBS argues, would ignore the statute’s mandatory burden-shifting framework. Contrary to UBS’s contention, innocent employers will not face liability for legitimate, nonretaliatory personnel decisions. The burden-shifting framework precludes that outcome. Thus, A whistleblower who invokes 18 U-S-C § 1514A must prove only that his protected activity “was a contributing factor in the unfavorable personnel action alleged in the complaint.”

Justice Samuel Alito authored a concurring opinion, in which Justice Amy Coney Barrett joined, reiterating the Court’s rejection of the “animus” requirement does not eliminate the intent requirement of the statute.

The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you.