The California Supreme Court has resolved an almost twenty-year-old disagreement about which burden-shifting test applies to whistleblower retaliation claims. Since 2003, some courts have applied the framework set forth in Labor Code Section 1102.6, while others have applied the test described in the United States Supreme Court’s decision McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.
Upon certification from the Ninth Circuit to resolve the dispute, the California Supreme Court concluded that Section 1102.6 governs and employees need not satisfy the McDonnell Douglas test.
The Conflicting Tests
Labor Code Section 1102.5 protects California employees from retaliation for reporting perceived unlawful conduct by their employer.
Section 1102.6, which sets out the test for evaluating such retaliation claims, states that once the employee establishes “by a preponderance of the evidence” that retaliation was a “contributing factor” in the employee's termination, demotion, or other adverse action, the burden then shifts to the employer to demonstrate “by clear and convincing evidence” that it would have taken the same adverse action “for legitimate, independent reasons.”
The similar, but meaningfully different, McDonnell Douglas test tasks the employee with presenting prima facie evidence of discrimination or retaliation. The burden then shifts to the employer to articulate a “legitimate reason” for the adverse action, upon which the burden shifts back to the employee to...
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