Law360 (February 8, 2024, 9:47 PM EST) — The U.S. Supreme Court held Thursday that whistleblowers don’t need to show that employers displayed retaliatory intent to have a viable case under the Sarbanes-Oxley Act, a ruling experts say could help workers pursuing retaliation claims under discrimination laws like Title VII keep their claims in court.

In unanimously siding with whistleblower Trevor Murray, the nation’s highest court held that plaintiffs need only show that their activity was a “contributing factor” to any negative action taken against them — like being fired — to be protected under SOX’s whistleblower provisions without separately showing retaliatory intent.

[…]

R. Scott Oswald, managing principal of plaintiffs’ firm The Employment Law Group PC, noted that Justice Sotomayor engaged in a lengthy discussion about what the word “discrimination” means, with the justices positioning Murray’s case alongside recent rulings such as Babb v. Wilkie and Bostock v. Clayton County.

In Babb, the justices endorsed a plaintiff-friendly causation standard for federal employees to successfully prove an age bias claim in court, and in Bostock they held that Title VII protects workers from being fired because of their sexual orientation or gender identity.

“At first blush, today’s opinion reaches only anti-retaliation laws that follow a ‘contributing factor’ standard — in other words, not laws such as Title VII that require the protected behavior to be a ‘motivating factor’ of an employer’s adverse action, which is a higher bar,” Oswald said.

But the high court “has been admirably clear lately” that anti-discrimination laws prohibit “all differential treatment that starts from an illegal place,” he added.

“The court is teaching us that the degree of discrimination doesn’t matter, and nor does the exact mindset of the discriminator, as long as the elements of a specific law are met,” Oswald said.

Five former leaders at the Architect of the Capitol have taken legal action against the agency after getting removed from their roles, in complaints that allege employment discrimination at the agency responsible for the upkeep and preservation of the Capitol Building and grounds.

Taken together, they paint a picture of bitter office strife among the agency leadership as a scandal ousted former Architect of the Capitol J. Brett Blanton, with descriptions of potential law violations, clashes with congressional staff and even workers investigated for going to a bar for a retirement party.

That includes a new complaint this week with the Office of Congressional Workplace Rights from a former director of legislative and public affairs that alleges gender discrimination and retaliation for her reporting sexist and corrupt behavior in the agency.

The turmoil first spilled over into the court system after Blanton’s successor, Chere Rexroat, removed four men from their leadership roles in April, and they filed discrimination lawsuits against the agency in August and October.

Those court filings describe Christine Leonard, the former director of legislative and public affairs, as a problematic employee who was ageist and sexist and discriminated against veterans and accuse her of participating in their removal.

Rexroat removed Leonard from her role in September, and now Leonard has filed her own discrimination complaint against the agency, and in it she calls out Blanton, Rexroat and the four male colleagues who filed lawsuits.

[…]

The four men who filed lawsuits are Jason Baltimore, a former general counsel; Jonathan Kraft, a former chief financial officer; William O’Donnell, a former chief administrative officer; and Peter Bahm, a former chief of staff. All of them are veterans and over the age of 40. Baltimore is Black and the rest are white.

Anita Mazumdar Chambers, the lawyer who represents Bahm, Baltimore, Kraft and O’Donnell, said Leonard was a major cause of the discrimination and dysfunction at the agency.

“Her predicament now is of her own making, and her OCWR complaint is a transparent attempt to reframe the mounting record against her,” Chambers said.

“My clients know nothing about her dismissal — they were ousted long before it, with Ms. Leonard’s participation — and they never engaged in, or supported, any discrimination against her,” Chambers said. “Any such claim is exactly backwards. They were exemplary public servants, and they didn’t deserve the shabby treatment they suffered.”

(Excerpts transcribed and edited lightly by The Employment Law Group)

 

[EXCERPT STARTING AT 11:38]

Host Amit Bindra: Your cases are in a bunch of different states, maybe up to 50. How do you manage finding the right local counsel and that whole process? A lot of trust has to go into finding who you’re going to work with when you’re in Alaska or Hawaii or wherever.

Anita Mazumdar Chambers: That’s a great question. It’s something that we spend a lot time doing to make sure we have the right people who know the courts well, know the rules, are easy to work with … There’s so much that goes into that. We do a lot of research. We use our National Employment Lawyers Association (NELA) networks to look for people to reach out to and use some of the NELA networking events too. If I meet someone at a conference, I can reach out to them. We also go by recommendations. We might ask our local NELA listserv or the Metropolitan Washington Employment Lawyers Association (MWELA) listserv, “Hey, we’re going to file this case out in Washington state. Have you used anyone recently?” Having input from colleagues is really helpful and something we rely on. We’ve been really lucky with such great local counsel to help us in our cases.

 

[EXCERPT STARTING AT 28:23]

Host Max Barack: You always hear when you get a new case, “Oh, they barely worked here, they just got here, they were terrible from the moment they got here.” But if someone’s been there for close to 20 years, and they’ve got awards on awards on awards, and they’re a high performer, big organizations like that don’t keep incompetent people around and keep promoting them and rewarding them for performance. It’s nice, on the off-occasions, when you get a client who is so well suited to that role because you rarely get that perfect client.

Chambers: It’s just funny that you say the “perfect client” because I always think about that. I feel like no one’s a perfect employee, right? We all have our flaws or weaknesses in the workplace, but those people deserve protection too. It is just something we are always trying to push against: the standards in the case law. They shouldn’t have to be this picture perfect plaintiff — because that’s so rare.