After today’s oral argument at the U. S. Supreme Court, the concept of “intentional retaliation” in whistleblower cases is on life support, and I predict that in a few short months the Supreme Court will pull the plug on it for good.

The Federal Rail Safety Act and statutes like it specify a two-step burden of proof: first, the employee has the burden of proving the protected activity was a contributory factor in the adverse action, and then the employer has the burden to prove by clear and convincing evidence it would have taken the exact same action in the absence of the protected activity.

The question in Murray v. UBS Securities LLC is whether whistleblower protection statutes such as the FRSA require employees to prove “intentional retaliation” in addition to the usual contributory factor element. In its Murray decision, the 2nd Circuit said yes, relying on the line of FRSA cases beginning with Kuduk v. BNSF Railway Company that requires employees to prove “intentional retaliation” as part of their prima facie case. In effect, those FRSA cases eliminated the two-step burden of proof by placing both burdens of proof on the employee.

The oral argument today focused on whether there is a separate additional “intentional retaliation” element employees must prove, or whether the usual two-step burden shifting remains in place. The comments of the Justices confirmed that “intentional retaliation” is a bogus concept pulled out of thin air by the 8th Circuit in Kuduk and does not change the usual two-step burden scheme. Justice Gorsuch’s comment is typical: “I just don’t see ‘retaliation’ in the stature. You are asking us to read into the statute words not there.”

All the Justices seemed to acknowledge an employer’s intent to discriminate is sufficiently established by the employee’s proof of the first step, and there is no additional “intentional retaliation” element for the employee to prove. And this makes sense, as the first step includes proof the employer had knowledge of the protected activity, and that knowledge, combined with the contributory factor proof, is sufficient to show an employer’s intent to discriminate.

Stay tuned for the upshot of this case, but the days of “intentional retaliation” are definitely numbered. For more on the rights of railroad workers under the FRSA, see the free Rail Whistleblower Library