In its brief with the American Trucking Association, the Chamber urged the Department of Labor’s Administrative Review Board (“Board”) to reject the unorthodox evidentiary standard for whistleblower claims that the Board developed in a previous case, Fordham v. Fannie Mae. That standard precludes judges from considering an employer’s evidence of causation in determining whether protected activity was a contributing factor in an alleged adverse employment action. The Chamber, however, argued that this burden of proof cannot be reconciled with the text of the federal whistleblower provisions at issue, as well as settled judicial interpretation of those and similar provisions. Specifically, the Chamber explained that, because a complainant in a whistleblower case must establish that protected conduct was a contributing factor in an adverse employment action by a preponderance of the evidence, that standard—by definition—requires the employer’s evidence to be weighed against the complainant’s.
James E. Gauch and Jacqueline M. Holmes of Jones Day served as co-counsel for the amici.