Causation in Whistleblowing Claims
41 Pages Posted: 26 Oct 2016 Last revised: 21 Feb 2017
Date Written: 2016
Whistleblowing cases have continued to increase in number in recent years as state and federal legislatures have added protections for employees who disclose illegal or wrongful activity by their employers. But even as the number of cases continues to climb, cohesive and coherent doctrines applicable in whistleblowing litigation have failed to emerge. A significant reason for this is that much of whistleblower protection is statutory in nature, and federal statutes vary greatly from state statutes, even as state statutes differ. A second reason is that courts have drawn upon doctrines developed under Title VII of the Civil Rights Act of 1964 in deciding whistleblowing cases, and Supreme Court decisions as well as statutory amendments have frequently altered legal standards in these cases. And a third reason is that there are overlapping common law and statutory protections, which result in the potential for different whistleblowing doctrines to develop, even within a single state.
Causation is one of the elements of a whistleblowing case where this doctrinal confusion proliferates. While federal statutory standards appear to be coalescing around requiring the plain-tiff to prove that the employee‘s whistleblowing was a contributing factor in causing the employee to be fired, the same cannot be said for claims brought under state law. Causation standards in state whistleblower cases encompass a wide array of options, ranging from the stringent standard of requiring that the employee establish that his or her whistleblowing was the sole cause of retaliation, to the more lenient standard of requiring that the employee prove that the whistleblowing was a motivating factor of the employer‘s retaliation.
At the same time, as my earlier work illustrates, inability to prove causation is one of the more common reasons that whistle-blowers fail to prevail in litigation. This article attempts to bring coherence to the confusion of state whistleblower causation standards by: (1) explaining the causation standards presently used in federal whistleblower protection statutes; (2) identifying the proliferating causation standards used in whistleblower claims brought under state law; (3) assessing the most commonly used causation standards, including exploring the tort causation doctrine and theory that underlie some of these standards; and (4) proposing a uniform standard for causation in state whistle-blower litigation.
Keywords: Whistleblowing, retaliation
JEL Classification: K00, K31
Suggested Citation: Suggested Citation