Littler Lightbulb ' May Employment Appellate Roundup

• Published date: 06 June 2023
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Employment Litigation/ Tribunals, Employee Rights/ Labour Relations, Arbitration & Dispute Resolution, Whistleblowing
• Law Firm: Littler Mendelson
• Author: Mr Mark Flores

This Littler Lightbulb highlights some of the more significant employment law developments at the U.S. Supreme Court and federal courts of appeal in the last month.

At the Supreme Court

• Intent Requirement Under Sarbanes-Oxley Anti-Relation Provision. The Supreme Court granted certiorari in Murray v. UBS Sec., LLC, U.S., No. 22-660 to determine whether the plaintiff in a Sarbanes-Oxley whistleblower retaliation case must prove the employer acted with "retaliatory intent" in taking an adverse employment action to resolve an apparent split between the circuits. The underlying case involves an appeal by a securities firm research strategist who claims he was fired in violation of the whistleblower protection provision of the Sarbanes-Oxley Act after allegedly complaining he was pressured to skew his research. The former employee is challenging the Second Circuit's decision, which overturned a jury verdict in his favor because the district court failed to instruct the jury that the plaintiff had to prove the employer's retaliatory intent to prevail on his claim. Interpreting what it called the plain ordinary meaning of the statute, the Second Circuit held that to prevail on a whistleblower retaliation claim the employee must prove the employer took an adverse employment action with intent to "'discriminate against an employee . . . because of' lawful whistleblowing activity." The deadline to file briefs on the merits is set for the summer of 2023 and the oral argument will likely occur during the Court's October 2023 - 2024 term. We will continue to report on developments in the case.

• Court Declines to Hear Reverse Discrimination Case. The Supreme Court declined to hear a case by two white former state police officers alleging they were retaliated against for complaining about the police department's diversity initiative that was dismissed at the district court level Caldwell v. Gasper, 2023 U.S. LEXIS 1864 (May 1, 2023) The plaintiffs sought review of the Sixth Circuit's decision in Caldwell v. Gasper, No. 22-1031, 22-1032, 2022 U.S. App LEXIS 30418 (6th Cir. 2022), which found that plaintiffs did not make out a prima facie case of retaliation because they did not engage in protected activity. The plaintiffs' criticism was comprised of general complaints about unfairness and dissatisfaction with the police department's reactions to the public outcry over the lack of diversity within the police force The Sixth Circuit held these criticisms, however, were too vague to constitute allegations of discrimination necessary to constitute protected activity in order to make prima facie case of retaliation. The Sixth Circuit further held that the plaintiffs failed to show that the adverse employment actions taken against the plaintiffs were pretext for retaliation before affirming the grant of summary judgment.

In the Federal Appellate Courts

• Limitations on EEOC Subpoena. In a significant case involving the limitations on the EEOC's subpoena power the Eleventh Circuit held in EEOC v. Eberspaecher North America Inc., No. 21-13799, 2023 U.S. App. LEXIS 11466 (11th Cir 2023) that an EEOC subpoena for nationwide information...