Which is the applicable evidentiary standard for whistleblower retaliation claims brought under section 1102.5 of California’s Labor Code: The familiar McDonnell Douglas framework or the more employee-friendly framework set forth in section 1102.6 of the Labor Code? Courts have left this question open for nearly two decades, but the California Supreme Court finally settled the issue in Lawson v. PPG Architectural Finishes, Inc.—a case certified from the United States Court of Appeals for the Ninth Circuit.
The plaintiff in Lawson sued his former employer for retaliation under section 1102.5. The district court applied the McDonnell Douglas framework, but the plaintiff argued that the burden-shifting framework set forth in section 1102.6 of California’s Labor Code ought to apply. The Ninth Circuit recognized that there were “key differences between the two standards” that could prove material. Specifically, the Ninth Circuit noted that: (1) section 1102.6 sets forth a true burden-shifting evidentiary standard unlike McDonnell Douglas, (2) section 1102.6 puts a “much heavier” burden on the employer if the employee can make his threshold showing of retaliation, and (3) application of the more relaxed McDonnell Douglas standard “would subvert the California legislature’s decision to afford” retaliation plaintiffs “heightened protection.”
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