In Lawson v. PPG Architectural Finishes, Inc., the Supreme Court today holds that California’s Labor Code section 1102.6, not the U.S. Supreme Court’s decision in McDonnell Douglas (1973) 411 U.S. 792, provides the evidentiary standard for whistleblower retaliation claims under California law: “Once an employee-whistleblower establishes by a preponderance of the evidence that retaliation was a contributing factor in the employee’s termination, demotion, or other adverse action, the employer then bears the burden of demonstrating by clear and convincing evidence that it would have taken the same action ‘for legitimate, independent reasons.’ ” Under the McDonnell Douglas test, the employee has the burden of demonstrating that an employer’s proffered legitimate reason is a pretext for discrimination or retaliation.

Answering a question referred by the Ninth Circuit, the court’s unanimous opinion by Justice Leondra Kruger says its “[u]nsurprising[ ]” answer provides the appropriate alternative to the McDonnell Douglas test in part because that test’s “focus on identifying the single, true reason for the adverse action creates complications in a so-called mixed-motives case, in which the employer is alleged to have acted for multiple reasons, some legitimate and others not.”

Noting conflicting case law in both the state and federal system, the court disapproves a 2014 opinion by the Second District, Division Three, Court of Appeal, a 2007 opinion by the Fourth District, Division Three, and a 2005 Third District opinion.