California Supreme Court Eases Path for Whistleblowing Employees

Author: David B. Weisenfeld

February 1, 2022

In a win for whistleblowers, the California Supreme Court has lowered the bar for employees to prove that their employer retaliated against them.

In Lawson v. PPG Architectural Finishes, California's highest court ruled that an employee need only show that whistleblowing was a contributing factor in the disciplinary action taken against them - not that it was the only factor.

The case involved an employee who refused to follow through on a manager's allegedly unlawful request and reported him through two anonymous complaints with PPG's central ethics hotline. The complaints led to an investigation, and PPG told the manager to discontinue the making those requests. The manager continued to supervise the plaintiff.

Several months later, the supervisor and his manager both determined that the plaintiff failed to meet the goals outlined in his performance improvement plan and recommended that the company fire him, which it did. The company argued that the plaintiff's poor performance was a legitimate, nonretaliatory reason for his termination.

In its ruling, the California Supreme Court found that a former employee does not have to show that retaliation was the only contributing factor to their termination in order to overcome a motion to dismiss.

Under the US Supreme Court's 1973 McDonnell Douglas ruling, creating a burden-shifting framework for showing evidence of retaliation or discrimination, an employee must first show that an employer took an adverse action for an allegedly discriminatory reason. Then the burden shifts to the employer to show that it had a legitimate, nondiscriminatory reason for taking the action.

Once the employer has stated a legitimate, nondiscriminatory reason for taking an adverse action, the test shifts the burden of proof back on the employee to show the employer's stated legitimate reason is a pretext for retaliation or discrimination.

But writing for the unanimous California Supreme Court, Justice Leondra Kruger reasoned that the employer's stated reason for termination in the present case was not enough to place an unnecessary burden on plaintiffs. She explained that it also would be inconsistent with the goal of the state's whistleblowing protections, namely, "encouraging earlier and more frequent reporting of wrongdoing by employees and corporate managers when they have knowledge of specified illegal acts" by expanding employee protection against retaliation.

Justice Kruger has been mentioned as being one of the leading names on President Biden's list to replace the retiring Justice Stephen Breyer on the US Supreme Court.