The California Supreme Court has clarified that state whistleblower retaliation claims should not be evaluated under the McDonnell Douglas test, but rather under the test adopted by the California legislature in 2003, thus clarifying decades of confusion among the courts.
California Labor Code Section 1002.5, which broadly prohibits retaliation against whistleblower employees, was first enacted in 1984. At that time the statute enumerated a variety of substantive protections against whistleblower retaliation, but it did not provide any provision setting forth the standard for proving retaliation.
Thus, trial courts began applying the three-part, burden-shifting framework laid out in McDonnell Douglas to evaluate these cases. The McDonnell Douglas framework is typically used when a case lacks direct evidence. Under the burden-shifting standard, a plaintiff is required to first establish a prima facie case by a preponderance of the evidence, then the burden shifts to the employer to rebut the prima facie case by articulating a legitimate, nondiscriminatory reason for the employer’s action. If the employer meets this burden, the plaintiff prevails only if they can show that the employer’s response is merely a pretext for behavior actually motivated by discrimination or retaliation.
But in 2003, the California legislature amended the Labor Code to add a procedural provision in section 1102.6. That provision provides that once a plaintiff establishes that a whistleblower...
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