Several of the whistleblower statutes enforced by the U.S. Department of Labor (DOL) prescribe a burden shifting scheme unfamiliar from Title VII and other discrimination claims. Last week, the Third Circuit Court of Appeals showed the difference this makes. Araujo v. New Jersey Transit Rail Operations, Inc., No. 12-2148 (3rd Cir. February 19, 2013). Here, a railway employee filed a whistleblower retaliation claim with the DOL under the Federal Rail Safety Act (FRSA), and, ultimately, exercised the option of filing in federal court. The Third Circuit noted that, under the FRSA, an employee states a claim by showing (1) protected activity, (2) the employer knew of the protected activity, (3) an unfavorable employment action, and (4) the protected activity was a “contributing factor” to the unfavorable action. Then, the burden shifts to the employer to show by “clear and convincing” evidence that the protected activity was not a contributing factor to its decision. As the court noted, this is a “steep burden,” which requires the employer to show that “the truth of its factual contentions are highly probable.”
This “clear and convincing” burden is much more difficult for an employer to meet than the burden that normally applies under Title VII and other anti-discrimination statutes. In this case, the employer failed to meet the “clear and convincing” standard, although it might well have met the standard under Title VII. Plan ahead for DOL whistleblower claims – they are an uphill climb for the employer and Congress greased the rails.