February 2, 2022

Lawson v. PPG Architectural Finishes, Inc. (Jan. 27, 2022, S266001)

In answer to a question certified by the Ninth Circuit Court of Appeals, the California Supreme Court has held that Labor Code section 1102.6 provides the governing framework for presentation and evaluation of whistleblower retaliation claims and that to prevail employee plaintiffs do not need to satisfy the three-part burden-shifting framework of McDonnell Douglas v. Green (1973) 411 U.S. 792.

Under McDonnell Douglas, the employee must establish a prima facie case of unlawful discrimination or retaliation. The employer then bears the burden of articulating a legitimate reason for taking the challenged adverse employment action. The burden then shifts back to the employee to demonstrate that the employer’s proffered legitimate reason is a pretext for the discrimination or retaliation. The California Supreme Court held that, under California law, a whistleblower retaliation plaintiff must first establish by a preponderance of the evidence that retaliation for a protected activity was a contributing factor in the contested employment action. Once the employee plaintiff does so, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the same action for legitimate, independent reasons even if the employee had not engaged in the protected activity.