The current Supreme Court has been increasingly criticized in recent years for restricting and even eliminating core rights, as illustrated by the Dobbs v. Jackson Women’s Health Organization opinion discussed in a prior blog post. In sharp contrast to this overall trend, the Supreme Court – like state supreme courts and state legislatures – has enhanced whistleblower rights and anti-retaliation protections more broadly. The latest example is Murray v. UBS, LLC, in which the Supreme Court unanimously ruled that the Sarbanes-Oxley Act requires a whistleblower to show only that their whistleblowing was a contributing factor in the employer’s adverse action being challenged. In other words, whistleblowers no longer need to prove that the employer acted with retaliatory intent before they can win their retaliation case in court. When a whistleblower shows that their whistleblowing was a contributing factor, the employer will lose the case unless the employer proves by “clear and convincing evidence” that it would have taken the adverse action against the whistleblower even if there had been no whistleblowing.

When explaining the reasoning underlying its ruling in Murray, the Supreme Court emphasized the importance of the widely applicable principle of breaking the “corporate code of silence.” In that regard, numerous other whistleblower and anti-retaliation laws have statutory language that closely resembles the language in the Sarbanes-Oxley Act on which the Supreme Court relied. In other words, the Supreme Court’s broad interpretation and application of anti-retaliation protections in Murray will likely extend to many other whistleblower and anti-retaliation laws like Title VII. Such legal developments are as welcome as they are necessary because, as a matter of empirical analysis, whistleblowing substantially reduces corporate wrongdoing. In any event, and unlike other recent opinions issued by the Supreme Court, Murray comports with the legal consensus around the world. For example, the European Union has issued a directive and the Organisation for Economic Co-operation and Development has adopted a policy that each expand whistleblower protections to end corporate and government fraud as well as other abuses.