Under INSCA must a whistleblower prove his employer acted with retaliatory intent as part of his case in chief?

On October the Justices heard oral arguments in Murray v UBS Securities, LLC a case that will decide how high a bar whistleblowers must clear in order to seek protection from retaliation under the SarbanesOxley Act.

Trevor Murray, a former research strategist at UBS Securities, reported alleged fraud to his supervisors and was then fired, an all too common form of retaliation. He took his former employer to court under SarbanesOxley, which protects whistleblowers who report wrongdoing by publicly traded companies.

Murray won his retaliation case after a full jury trial, but UBS appealed, and the Second Circuit vacated the judgment on a novel reading of the statute: it said the jury should have been instructed that Murray could not prevail without proving his employer had intended to retaliate against him.

At the Supreme Court, Murray argues that the Second Circuits standard for retaliation under SarbanesOxley is too high. He contends that whistleblowers should have to show only that their protected activity was a contributing factor in their employers adverse personnel action.

Then, he contends, the burden should shift to the employer to prove otherwisethat it would have taken the same adverse action regardless of the employees whistleblowing. At oral arguments, Justices on both sides of the Courts ideological divide seemed skeptical of UBSs position, given that the statute incorporates a more permissive contributing factor test from the Whistleblower Protection Act for federal employees.

The Courts ruling in Murray will have enormous consequences.

Requiring whistleblowers to prove retaliatory intent, rather than shifting to employers the burden to prove its absence is pivotal, because proving a defendants mindset is a steep uphill climb for any plaintiff. The same is true for requiring proof that such intent was the sole or predominant cause of the employers action, instead of just a contributing factor.

Making whistleblowers shoulder these heavier burdens of proof would chill even the strongest claims of retaliation and would discourage employees from shedding light on misconduct inside publicly traded companies, a result that seems antithetical to the very purpose of SarbanesOxley.