California Supreme Court Considers Question About Workplace Retaliation

"Does the evidentiary standard outlined in Section 1102.6 of the California Labor Code replace McDonnell Douglas test as the relevant evidentiary standard for retaliation claims brought under Section 1102.5 of California's Labor Code?" When the Ninth Circuit court certified this question to the Supreme Court of California, they opened up new possibilities that could make disposing of whistleblower retaliation claims more difficult. 

All the Details of the Case: Lawson v. PPG Architectural Finishes, Inc.

Case No.: No. 19-55802

Court:  United States District Court, 9th Cir. 2020

Is the California Supreme Court About to Make Disposing of Whistleblower Retaliation Claims More Difficult? 

Many wonder if the California Supreme Court is about to make disposing of whistleblower retaliation claims more difficult. And they could be right. The Supreme Court did agree to answer the Ninth Circuit Court of Appeals' question regarding California law and unlawful retaliation against employees as alleged in Lawson v. PPG Architectural Finishes, Inc. 

Setting the Evidentiary Standard: Lawson v. PPG Architectural Finishes, Inc. 

The 9th Circuit's request for the California Supreme Court to answer this particular question could result in new evidentiary standards for whistleblower retaliation claims brought under California Labor Code Section 1102.5. In the Lawson case, Mr. Lawson worked as a territory manager with duties involving merchandising products to retail outlets and stocking company displays. Mr. Lawson's supervisor allegedly asked him to manage a product in a way that would fraudulently remove the slow-selling product from inventory. Mr. Lawson refused to carry out the fraudulent task and reported the situation to his employer's ethics hotline - twice. 

The Company's Response to Lawson's Report Regarding Unethical Behavior: 

The second time Lawson reported the situation to the company's ethics hotline, there was an investigation. Simultaneously, Mr. Lawson received poor performance ratings, was issued a performance improvement plan, and then terminated. Mr. Lawson claims that he was retaliated against as a whistleblower. 

What is the McDonnell Douglas Test? 

The trial applied the McDonnell Douglas test in the Lawson case. The McDonnell Douglas test employs burden-shifting between the plaintiff and the defendant in employment law cases. The test originated in connection with Title VII (the federal statute that governs discrimination, harassment, and retaliation in the workplace). After using the McDonnell Douglas test to determine that the plaintiff failed to fulfill his burden to present facts that show retaliatory behavior and a causal relationship between the behavior and the adverse employment action, the trial court granted the employer's motion for summary judgment. 

Appealing to the Ninth Circuit Court: Lawson v. PPG Architectural Finishes, Inc.

In his appeal to the Ninth Circuit Court, Lawson argued that the trial court should have applied the evidentiary standard outlined in California Labor Code 1102.6. It states that once a preponderance of evidence demonstrates whistleblower activity was a contributing factor in retaliatory action against an employee, the burden of proof is on the employer to show alleged actions were taken for legitimate, non-retaliatory reasons. In requesting the California Supreme Court consider the question, the Ninth Circuit Court pointed out three published California appellate court decisions that applied McDonnell Douglas after the amendment. This presents a contradiction between California statute and the state's court rulings. 

If you need to discuss California state labor laws or if you need to file a California workplace retaliation lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.