What is a whistleblower's burden to prove retaliation under the Sarbanes-Oxley Act?

Elements of a SOX Whistleblower Retaliation Claim

To prevail, a SOX whistleblower must prove by a preponderance of the evidence that:

they engaged in protected activity (they made a protected disclosure under Section 806);
the employer knew that they engaged in the protected activity;
they suffered an unfavorable personnel action;
the protected activity was a contributing factor in the unfavorable action.

Once a SOX whistleblower has proven these elements by a preponderance of the evidence, the burden is on the employer to prove by clear and convincing evidence that it would have taken the same adverse action in the absence of the employee engaging in protected activity.

What is a whistleblower’s burden to prove retaliation under SOX?

A whistleblower must demonstrate that their protected activity was a contributing factor in the decision to take an adverse action, i.e., that it was “more likely than not” played “any role whatsoever” in the allegedly retaliatory action.[i] And “any role whatsoever” is no exaggeration—the protected activity need not amount to a “significant, motivating, substantial or predominant” factor in the adverse action.[ii]

A whistleblower may meet this burden by proffering circumstantial evidence, such as:

Direct evidence of retaliatory motive, e., “statements or acts that point toward a discriminatory motive for the adverse employment action.”[iii]
Shifting or contradictory explanations for the adverse employment action.[iv]
Evidence of after-the-fact explanations for the adverse employment action. “[T]he credibility of an employer’s after-the-fact reasons for firing an employee is diminished if these reasons were not given at the time of the initial discharge decision.”[v]
Animus or anger towards the employee for engaging in a protected activity.
Significant, unexplained or systematic deviations from established policies or practices, such as failing to apply a progressive discipline policy to the whistleblower.[vi]
Singling out the whistleblower for extraordinary or unusually harsh disciplinary action.[vii]
Disparate treatment or proof that employees who are situated similarly to the plaintiff, but who did not engage in protected conduct, received better treatment.
Close temporal proximity between the employee’s protected conduct and the decision to take an actionable adverse employment action.
Evidence that the employer conducted a biased or inadequate investigation of the whistleblower’s disclosures, including evidence that the person accused of misconduct controlled or heavily influenced the investigation.
The cost of taking corrective action necessary to address the whistleblower’s disclosures and the decision-maker’s incentive to suppress or conceal the whistleblower’s concerns.
Corporate culture and evidence of a pattern or practice of retaliating against whistleblowers.

If the whistleblower proves “contributing factor” causation by a preponderance of the evidence, then the burden shifts to the employer to prove clearly and convincingly that it would have taken the same adverse action in the absence of the employee’s engagement in protected activity.

In a mixed-motive case (where there is evidence of both a lawful and unlawful motive for the adverse action), does the evidence of a legitimate justification for the adverse action negate the whistleblower’s evidence that whistleblowing partially influenced the decision to take the adverse action?

A SOX whistleblower will typically prevail in a mixed-motive case because the SOX whistleblower’s burden is merely to show that protected activity played “any role whatsoever”—i.e., that it was a “contributing factor”—in the adverse employment action. If the decision-maker placed any weight whatsoever on the protected activity, then the whistleblower will establish causation.

The ARB has instructed ALJs to apply the following analysis in mixed-motive cases:

If the ALJ believes that the protected activity and the employer’s non-retaliatory reasons both played a role, the analysis is over and the employee prevails on the contributing-factor question. Thus, consideration of the employer’s non-retaliatory reasons at step one will effectively be premised on the employer pressing the factual theory that nonretaliatory reasons were the only reasons for its adverse action. Since the employee need only show that the retaliation played some role, the employee necessarily prevails at step one if there was more than one reason and one of those reasons was the protected activity.[viii]

[i] Palmer v. Canadian National Railway, ARB No. 16-035 at 53 (citations omitted).

[ii] Allen v. Stewart Enters., Inc., ARB Case No. 06-081, slip op. at 17 (U.S. Dep’t of Labor July 27, 2006).

[iii] William Dorsey, An Overview of Whistleblower Protection Claims at the United States Department of Labor, 26 J. Nat’l Ass’n Admin. L. Judiciary 43, 66 (Spring 2006) (citing Griffith v. City of Des Moines, 387 F.3d 733 (8th Cir. 2004)).

[iv] Clemmons v. Ameristar Airways, Inc., ARB No. 08-067, at 9, ALJ No. 2004-AIR-11 (ARB May 26, 2010) (footnotes omitted).

[v] Id. at 9-10 (footnotes omitted).

[vi] Bobreski v. J. Givoo Consultants, Inc., ARB No. 13-001, ALJ No. 2008-ERA-3 (ARB Aug. 29, 2014).

[vii] See Overall v. TVA, ARB Nos. 98-111 and 128, slip op. at 16-17 (Apr. 30, 2001), aff’d TVA v. DOL, 59 F. App’x 732 (6th Cir. 2003).

[viii] Palmer v. Canadian National Railway, ARB No. 16-035 at 56-57 (citations omitted).

At the Causation Stage, ALJs Should Not Weigh the Employer’s Non-Retaliatory Reasons Against the Employee’s Protected Activity

In Palmer, the ARB admonished ALJs not to weigh the relative importance of the protected activity and the employer’s non-retaliatory reasons when determining contributing factor causation. As discussed above, the contributing factor standard is met if the protected activity was only one of many reasons for the adverse action. The protected activity need play only some role, however small, in the decision. See id. at 55. It is therefore inconsequential if the non-retaliatory reasons were of great importance to the decisionmaker, while the protected activity had little weight. See id. Under the contributing factor standard, the only question to be answered is whether the decisionmaker placed any weight whatsoever on the protected activity. See id. If so, the whistleblower will establish causation.

SOX Whistleblower Lawyer’s Guide to SOX Whistleblower Protection

We represent corporate whistleblowers in Sarbanes-Oxley whistleblower retaliation claims. To learn more about protections for corporate whistleblowers, download our free guide Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers.

Experienced SOX Whistleblower Lawyers

We have assembled a team of leading whistleblower lawyers to provide top-notch representation to Sarbanes-Oxley (SOX) whistleblowers. Recently Washingtonian magazine named two of our attorneys top whistleblower lawyers. U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 Law Firm in the Washington D.C. metropolitan area.

The whistleblower lawyers at Zuckerman Law have substantial experience litigating Sarbanes Oxley whistleblower retaliation claims and have achieved substantial recoveries for officers, executives, accountants, auditors, and other senior professionals. To schedule a free preliminary consultation, click here or call us at 202-262-8959.

Matt Stock is a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor. As an auditor, Mr. Stock developed an expertise in financial statement analysis, internal controls testing and fraud recognition, and he uses his auditing experience to help whistleblowers investigate and disclose complex financial frauds to the government and obtain damages for retaliation. He is lead author of SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.
Both Bachman and Zuckerman served in senior positions at the Office of Special Counsel, where they oversaw investigations of whistleblower retaliation claims and whistleblower disclosures, and enforced the Whistleblower Protection Act.
Eric Bachman has substantial experience litigating precedent-setting employment cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is ready to go the distance to obtain the relief that you deserve.
Bachman and Zuckerman served on the Department of Labor’s Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA’s administration of federal whistleblower protections.
Jason Zuckerman was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2017, 2015, 2009, and 2007, selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers(2012 and 2015-2017) in the category of labor and employment law. Zuckerman is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.
The firm has published extensively on whistleblower rights and protections, and regularly speaks nationwide at seminars and continuing legal education conferences. We blog about new developments in whistleblower law at the Whistleblower Protection Blog.

Leading whistleblower law firm Zuckerman Law has written extensively about whistleblower protections and is quoted frequently in the media on this topic. A sample of those blog posts and articles appears below: