Tag: SCOTUS

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Transgender Athletes, Discrimination Law & Your Rights

Hostile Work Environment | Workplace bullying attorneys Helmer Friedman LLP.

Transgender Athletes and the Law: Rights, Rulings, and Real Consequences

The legal landscape for transgender individuals in the United States has never been more contested—or more consequential. From the locker room to the courtroom, from the workplace to the rowing dock, transgender people face discrimination that carries real, lasting harm. At the same time, the legal protections designed to shield them are being actively challenged, reinterpreted, and in some cases, dismantled.

This post unpacks that tension. It examines the federal and state laws that govern transgender rights in sports and the workplace, explores how recent Supreme Court decisions are reshaping the legal landscape, and draws on a disturbing real-world case involving a teenage transgender girl in Sacramento to illustrate what’s actually at stake when legal protections fail.

Whether you are a transgender individual who has faced discrimination, an employer trying to understand your legal obligations, or someone seeking to understand your rights after being targeted in a sports program, this guide explains what the law says—and where it still falls short.

The Legal Framework: How Federal Law Protects Transgender Individuals

What does Title VII cover for transgender employees?

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex. For decades, courts debated whether “sex” encompassed gender identity. That debate ended—at least at the federal level—with the U.S. Supreme Court’s landmark 2020 ruling in Bostock v. Clayton County. The court held that discrimination against transgender employees constitutes sex discrimination under Title VII.

That ruling has broad implications. Employers cannot legally fire, demote, harass, or refuse to hire someone because they are transgender. Deliberately and persistently misgendering a transgender employee, excluding them from meetings, or creating a hostile work environment based on gender identity can all constitute actionable discrimination under federal law.

How does Title IX apply to transgender students and athletes?

Title IX of the Education Amendments of 1972 prohibits sex discrimination in any education program or activity receiving federal funding. Several federal courts have interpreted Title IX to protect transgender students from discrimination and harassment based on gender identity. Schools, under this framework, cannot exclude, harass, or mistreat transgender students and must respect their right to participate in activities consistent with their gender identity.

That interpretation, however, is now under significant legal pressure—particularly when it comes to sports.

The Supreme Court’s 2026 Ruling: A Turning Point for Transgender Athletes

In June 2026, the U.S. Supreme Court’s six-justice conservative majority issued a 6-3 decision upholding state laws that bar transgender girls and women from playing on school sports teams consistent with their gender identity, as reported by Chalkbeat.

The decision arose from two consolidated cases: Little v. Hecox, involving Lindsay Hecox, a transgender student who competed on a women’s club track and field team in Idaho after she didn’t qualify for the Division I team, and West Virginia v. B.P.J., involving Becky Pepper-Jackson, a transgender high school track athlete who had undergone hormone therapy from a young age.

Writing for the majority, Justice Brett Kavanaugh interpreted the term “sex” in Title IX’s sports provisions to refer exclusively to biological sex. He cited unsettled science around whether transgender women who have undergone hormone therapy retain physical advantages, and concluded that allowing transgender girls to compete on girls’ teams could place other competitors at a “serious disadvantage.”

The ruling leaves in place restrictions in 29 states, most of which explicitly bar transgender women and girls from women’s and girls’ school sports teams, according to the Movement Advancement Project. Idaho was the first state to enact such a law, in 2020.

Critically, the decision does not require states to ban transgender athletes—it permits them to do so. States like California, which allows transgender athletes to compete consistent with their gender identity, retain that right for now. But the ruling signals a future in which those inclusive policies face escalating legal and political pressure.

What did the dissenting justices say?

Justice Sonia Sotomayor dissented, questioning the majority’s cavalier treatment of transgender individuals’ rights under the Equal Protection Clause of the Fourteenth Amendment. She acknowledged that bans on transgender women and girls in female sports may not always violate Title IX, but argued that at least one of the cases—Becky Pepper-Jackson’s—warranted further fact-finding, given that Pepper-Jackson never went through male puberty.

Sotomayor also underscored the human cost of the ruling. “Sports can help build resilience, tenacity, leadership, and discipline,” she wrote. “It can lead to life-long friendships, community, and a sense of belonging… Sports, of course, are often zero sum, but the law need not and should not be.”

Workplace Discrimination Against Transgender Individuals: What It Looks Like in Practice

What are the most common forms of workplace discrimination against transgender employees?

Workplace discrimination against transgender people rarely presents as a single, obvious act. It tends to accumulate—a pattern of behavior that, taken together, creates a hostile and intolerable work environment.

Common forms include:

  • Persistent misgendering: Deliberately using incorrect pronouns or names, especially after being corrected, can constitute harassment under Title VII.
  • Exclusion from meetings or opportunities: Systematically leaving a transgender employee out of professional development, team discussions, or advancement opportunities.
  • Hostile work environment: Allowing coworkers or management to make derogatory comments, spread false rumors, or engage in targeted bullying.
  • Wrongful termination: Firing an employee because of their transgender identity or because they reported discrimination.

Employers face potential liability not just for their own conduct, but for the conduct of managers and coworkers if they knew—or should have known—about the harassment and failed to act.

According to the Equal Employment Opportunity Commission (EEOC), harassment complainants filed 35,774 claims in 2024, representing an approximately 32% increase from 2022. That surge reflects growing awareness of legal rights—but also a worsening climate of discrimination.

What legal remedies are available to transgender employees?

Under Title VII, transgender employees who experience discrimination can file a complaint with the EEOC. If the agency finds merit in the claim, it can pursue conciliation or litigation on the employee’s behalf. Employees may also file a private lawsuit seeking compensatory damages, back pay, reinstatement, and attorneys’ fees. California employees have additional protections under the California Fair Employment and Housing Act (FEHA), which explicitly prohibits discrimination based on gender identity and expression and requires employers to provide reasonable accommodations for transitioning employees.

The Capital Crew Case: When Harassment Happens to a Child

Few cases illustrate the lived reality of anti-transgender discrimination more starkly than the lawsuit filed against Capital Crew, a competitive youth rowing program housed at the Sacramento State Aquatic Center.

According to a lawsuit filed in Sacramento County Superior Court, a 12-year-old transgender girl—identified by a pseudonym—endured more than two years of bullying, exclusion, and harassment at the hands of teammates and coaches. The alleged discrimination began after a parent publicly complained that she was “a boy on the girls’ team.” What followed, per the lawsuit, was systematic and relentless.

Teammates allegedly excluded her from team meetings, refused to acknowledge her presence, laughed at her, and threatened her only friend against spending time with her. Coaches, the lawsuit claims, failed to acknowledge her achievements, misgendered her, and omitted her from team selections. In January, she was allegedly separated from the rest of the team and made to practice alone on land while her teammates were on the water.

In April, a false rumor that she had inappropriately touched a teammate spread through the program. The mental health consequences were severe. According to the lawsuit, she experienced self-harm and suicidal ideation before eventually quitting the team.

The lawsuit names the coaches, Capital Crew, the Sacramento State Aquatic Center, Sacramento State, the Associated Students, Inc., and the California State University trustees. It seeks her reinstatement, the termination of the implicated coaches, an end to discrimination against transgender individuals, and compensatory damages.

Attorney Susie Cirilli, who represents the child and her mother, was unequivocal about the case’s significance. “The reason why this case is important, because at issue in this complaint, is the treatment of a child,” Cirilli said. “For over a year, this child was left unprotected while the people in charge—when not actively engaging in the hostility themselves—condoned the unlawful harassment that was being committed by the other girls on the rowing team.”

Cirilli also drew a direct line between the political climate and the harm suffered by the child. “It is important to understand that the rhetoric that is out there in the zeitgeist right now… people need to understand that it has direct effects on children.”

How does harassment in youth sports differ from workplace discrimination—and where do they overlap?

Youth sports programs like Capital Crew occupy a distinct legal space. They are not traditional employers, and participants are not employees. However, programs housed within or affiliated with institutions that receive federal funding—such as a university aquatic center—may be subject to Title IX, which prohibits sex discrimination in federally funded education programs and activities.

The legal remedies available in such cases can include reinstatement, compensatory damages, and institutional accountability measures—such as the lawsuit’s demand to strip Associated Students of its auxiliary status at Sacramento State. Organizations that fail to protect minors in their programs from harassment and discrimination face not only legal liability but significant reputational and institutional consequences.

The Gap Between Legal Protections and Lived Experience

Federal law, as it stands, provides meaningful protections for transgender employees. Bostock v. Clayton County was a watershed moment. California’s FEHA offers some of the strongest protections in the country. Yet as the Capital Crew case and the EEOC’s rising claims data both demonstrate, legal protections on paper do not automatically translate into safety in practice.

Discrimination compounds. A transgender teenager who is bullied out of a rowing program carries that experience into adulthood—into job interviews, performance reviews, and every subsequent environment where they must decide how much of themselves to reveal. The intersection of hostile rhetoric, inadequate institutional responses, and unsettled law creates conditions where discrimination can persist even where it is technically prohibited.

The Supreme Court’s 2026 sports ruling has not resolved these tensions—it has intensified them. Legal experts noted that the decision was deliberately narrow, tailored to sports and leaving many broader transgender rights questions open for future litigation. As Deborah Brake, a University of Pittsburgh law professor who has written extensively about Title IX, observed, nothing in the decision “forecloses challenges to transgender discrimination in other areas.”

Understanding Your Rights and Taking Action

The legal framework around transgender rights is evolving rapidly, and not always in a protective direction. That makes it more important than ever for transgender individuals—and their advocates—to understand what protections currently exist, where enforcement gaps remain, and when to seek legal recourse.

If you or someone you know has experienced workplace discrimination, harassment in a sports or educational program, or retaliation for reporting such conduct, the time to act is now. Legal claims are subject to statutes of limitations, and delays can affect your ability to seek justice.

Helmer Friedman LLP has represented clients in complex discrimination, harassment, and civil rights cases for over 20 years. Our attorneys understand both the legal landscape and the human cost of discrimination. If you believe your rights—or a child’s rights—have been violated, contact us for a confidential consultation. We will listen, evaluate your case honestly, and advocate fully on your behalf.

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Title IX & Employees: Does the Law Protect School Workers?

Whistleblower Retaliation laws protect older employees from discriminatory policies - Helmer Friedman LLP.

Does Title IX Protect School Employees From Sex Discrimination?

A landmark U.S. Supreme Court case, Crowther & Joseph v. Board of Regents of the University System of Georgia (Docket No. 25-183), asks whether Title IX of the Education Amendments of 1972 gives school employees the right to sue for sex discrimination. The Eleventh Circuit said no. The National Women’s Law Center, joined by civil rights organizations and members of Congress, filed an amicus brief on July 16, 2026, urging the Supreme Court to reverse that ruling.

A female professor, fully credentialed and clearly qualified, applies for a faculty position. She is turned down. The reason a colleague offers? She “comes on too strong for a woman.”

That was Dr. Bernice “Bunny” Sandler’s experience at the University of Maryland in 1969. Rather than accept it, Dr. Sandler documented discrimination across hundreds of institutions, filed federal charges, and placed the evidence before Congress. Her work became the foundation for Title IX of the Education Amendments of 1972. For that, she earned the title “Godmother of Title IX.”

More than fifty years later, the U.S. Supreme Court is being asked to decide whether Title IX even protects the people it was built to defend—employees working in education. The answer to that question will shape the rights of millions of teachers, coaches, and administrators nationwide.

What Is the Core Legal Question in Crowther & Joseph?

Title IX states plainly: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).

The statute says person. Not student. Not applicant. Person.

Yet the Eleventh Circuit ruled in Crowther v. Board of Regents of the University System of Georgia, 121 F.4th 855 (11th Cir. 2024), that school employees lack a private right of action under Title IX—meaning they cannot personally sue in federal court to enforce their rights. Under this interpretation, a teacher facing sexual harassment, a coach passed over for promotion because of her sex, or an administrator paid less than her male counterpart would have no direct judicial remedy under Title IX.

The National Women’s Law Center (NWLC), alongside the American Association of University Women, Equal Rights Advocates, Legal Momentum, Public Justice, Women’s Law Project, and a coalition of U.S. lawmakers—including Senator Mazie K. Hirono, Senator Lisa Blunt Rochester, and Congresswoman Adelita S. Grijalva—filed an amicus brief on July 16, 2026, urging the Supreme Court to reverse the Eleventh Circuit’s decision.

Their argument is grounded in three pillars: the statute’s plain language, its legislative history, and decades of Supreme Court precedent.

What Congress Actually Intended When It Passed Title IX

The legislative record leaves little ambiguity. Senator Birch Bayh, who introduced Title IX’s language on the Senate floor, was explicit. He described the amendment’s impact as “far-reaching” and said it was “designed to root out, as thoroughly as possible at the present time, the social evil of sex discrimination in education.” 118 Cong. Rec. 5111, 5804 (1972).

When asked directly about coverage, Senator Bayh named “employment practices for faculty and administrators” first on his list of areas where discrimination had been documented. He told his colleagues the statute would cover “discrimination in employment within an institution, as a member of faculty or whatever” and added, starkly: “In the area of employment, we permit no exceptions.” 118 Cong. Rec. 5111, 5812 (1972).

Congresswoman Patsy T. Mink—for whom Title IX was later renamed—testified that universities “discriminate against women in hiring faculty” and that “women faculty members are frequently paid less than their male counterparts even though equally competent and equally experienced.” She was unambiguous about the cause: “these differences do not occur by accident. They are the direct result of consciously discriminatory policies.”

The 1970 congressional hearings that preceded Title IX’s passage were not a peripheral discussion about student life. Employment discrimination was their centerpiece. Congress enacted Title IX knowing exactly what it was addressing.

Three Supreme Court Cases That Already Answered This Question

The NWLC amicus brief argues the Supreme Court has already resolved this issue—repeatedly—through three landmark decisions.

Cannon v. University of Chicago, 441 U.S. 677 (1979), established that individuals have an implied private right of action under Title IX. The Court grounded that right in the statute’s focus on “persons” and Congress’s intent to provide “individual citizens effective protection against discriminatory practices.” The Court drew no distinction between students and employees.

North Haven Board of Education v. Bell, 456 U.S. 512 (1982), went further, holding explicitly that school employees are “persons” to whom Title IX applies. The Court noted that Congress “easily could have substituted ‘student’ or ‘beneficiary’ for the word ‘person'” if it had meant to exclude employees. It did not. The legislative history, particularly Senator Bayh’s statements, confirmed what the text said.

Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), extended Title IX protections to cover retaliation. Critically, the plaintiff—Roderick Jackson—was a coach, not a student. The Supreme Court’s analysis rested entirely on the breadth of the statutory text, not on the identity of the person invoking it. His status as an employee gave the Court no pause whatsoever.

As the NWLC brief summarizes: Cannon recognized a private right of action for any “person.” North Haven confirmed employees are “persons” under Title IX. The logical sum is that employees have already been granted the right to sue—the Eleventh Circuit simply refused to acknowledge it.

Every federal appellate court to consider the question after Jackson—save the Eleventh Circuit—has reached the same conclusion.

The Ongoing Reality of Sex Discrimination in Educational Workplaces

This case is not an abstract legal debate. The discrimination that Title IX was meant to address has not disappeared.

According to the NWLC amicus brief and its supporting sources:

  • Sexual harassment affects up to 58% of faculty and staff in academic settings—a higher rate than virtually any other work environment except the military (Lorens et al., Neuron, 2021).
  • Women who have children before earning tenure are 20% less likely than men to receive it (Skorinko et al., Policy Insights from Behavioral & Brain Sciences, 2020).
  • Women K-12 teachers earn $2,200 less per year than their male colleagues, despite comprising 77% of the profession (Will, Education Week, 2023).
  • Women full-time college faculty earn 84 cents for every dollar earned by male peers (AAUP Data Snapshot, 2025).
  • Women hold only 33% of university presidencies (American Council on Education, 2023) and 26% of school district superintendent roles (AASA Superintendent Salary & Benefits Study, 2025).
  • Women comprise only 37% of full-time professors, are less likely to be tenured or on tenure track, and are less likely to be promoted (AAUP, 2025).

These are not relics of 1972. They are the current landscape—the one Dr. Sandler fought to change, and the one millions of educational workers still navigate.

What Happens If the Eleventh Circuit’s Ruling Stands?

If the Supreme Court affirms the Eleventh Circuit’s decision, the consequences are sweeping. Teachers, coaches, counselors, and administrators at federally funded schools and universities could no longer bring their own Title IX claims in federal court. They would lose direct access to a legal remedy that Congress explicitly intended them to have.

The NWLC brief warns this would “break faith with the statute, with Congress’s unmistakable purpose, with decades of this Court’s precedent, and with the legacy of tireless advocates” who made Title IX possible in the first place.

It would also create an anomaly so stark it defies logic: a student who faces sex discrimination could sue under Title IX, but the professor who taught her could not.

What the Supreme Court Should Do—And What You Can Do Now

The amici in this case—civil rights organizations, lawmakers, and legal scholars—are asking the Supreme Court to reverse the Eleventh Circuit’s judgment and reaffirm what Congress made clear in 1972: Title IX protects every person in a federally funded educational environment, students and employees alike.

The outcome of Crowther & Joseph will determine whether millions of educational workers can hold their institutions accountable in court for sex discrimination. It will define whether the law means what it says.

Frequently Asked Questions About Title IX and Employee Rights

Does Title IX currently protect employees from sex discrimination?

Yes—according to the statute’s plain text, its legislative history, and precedents established by the Supreme Court in Cannon (1979), North Haven (1982), and Jackson (2005). The Eleventh Circuit ruled otherwise in 2024, and the Supreme Court is now reviewing that decision in Crowther & Joseph v. Board of Regents (Docket No. 25-183).

What is a private right of action, and why does it matter?

A private right of action is the ability of an individual to file their own lawsuit in federal court to enforce a legal right. Without it, an employee who faces sex discrimination must rely on a government agency—such as the Department of Education—to act on their behalf. A private right of action gives employees direct access to judicial enforcement.

Can I file a Title IX claim as a school employee today?

The ability to bring a Title IX claim as an employee depends on which federal circuit covers your jurisdiction. Most federal appellate courts have recognized employee claims; the Eleventh Circuit (covering Alabama, Florida, and Georgia) has ruled against them. The Supreme Court’s decision in Crowther & Joseph will resolve this split nationwide.

What other legal options exist for employees facing sex discrimination in education?

Title VII of the Civil Rights Act of 1964 independently prohibits sex discrimination in employment across most workplaces, including educational institutions. State laws may also provide additional protections. The relationship between Title VII and Title IX—and the protections each independently affords—is a key issue in the Crowther & Joseph litigation.

What should I do if I’ve experienced sex discrimination as a school employee?

If you are a teacher, coach, administrator, or other educational worker who has faced sex discrimination, harassment, or retaliation, your legal rights depend on your specific circumstances and jurisdiction. Speaking with an experienced employment attorney as soon as possible is critical—both for preserving evidence and meeting filing deadlines.

Your Rights Deserve a Vigorous Defense

At Helmer Friedman LLP, we have spent more than 20 years advocating for individuals facing sex discrimination, harassment, retaliation, and wrongful termination—including in educational settings. We understand that deciding to take legal action takes courage, and we offer confidential consultations to help you understand your options clearly and without obligation.

Whether your case involves a single institution or requires representation before the nation’s highest courts, we stand as your advocate in justice. Contact our team today to discuss your situation in confidence.

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Ketanji Brown Jackson

Black History Month - Helmer Friedman LLP.

Ketanji Brown Jackson was the first Black woman to sit on the nation’s highest court in its 223-year history.

Helmer Friedman LLP discusses President Bidens nomination of Judge Brown Jacksons to SCOTUS.Judge Jackson, who clerked for Justice Breyer, worked as a public defender, a corporate attorney, a U.S. District Court judge, and a judge on the U.S. Court of Appeals for the District of Columbia.

 

“If I’m fortunate enough to be confirmed as the next associate justice of the Supreme Court of the United States,” Judge Jackson commented in her prepared remarks about her nomination, “I can only hope that my life and career, my love of this country and the Constitution and my commitment to upholding the rule of law and the sacred principles upon which this great nation was founded, will inspire future generations of Americans.”

Since joining the Supreme Court, Justice Ketanji Brown Jackson has made valuable contributions, including writing a notable dissenting opinion in the Court’s ruling on presidential immunity involving then-former President Donald Trump. In her dissent, Jackson argued that the majority’s decision “breaks new and dangerous ground” by granting a former president immunity from prosecution for certain official acts. She expressed concern that this ruling could exempt presidents from legal liability for serious criminal acts as long as they claim their actions were “official acts.”

Jackson’s dissent emphasized the importance of holding presidents accountable for their actions and warned that the ruling could have disastrous consequences for democracy.

 

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Reverse Discrimination

Battling sex discrimination to make our world more inclusive.

Reverse Discrimination and the U.S. Supreme Court’s Unanimous Decision

Reverse discrimination is an intriguing and multifaceted topic in the realm of employment law, fostering rich discussions about whether individuals from historically privileged groups, such as White or male employees, can claim discrimination if they feel they’ve been treated unfairly due to their majority status. Traditionally, courts imposed an additional hurdle on these plaintiffs known as the “background circumstances” rule. However, a transformative moment arose on June 5, 2025, with the U.S. Supreme Court’s ruling in Ames v. Ohio Department of Youth Services.

For many years, five federal circuit courts upheld this “background circumstances” rule, requiring plaintiffs from majority groups to provide substantial evidence of discriminatory biases held by their employers. This sometimes created an uneven playing field, imposing heavier proof requirements on majority plaintiffs compared to their minority counterparts. The ruling in Ames v. Ohio Department of Youth Services marks a significant turning point, dismantling this disparity and realigning Title VII’s implementation with its original intent.

Greg Helmer, of Helmer Friedman LLP represents two Major League Soccer (“MLS”) coaches in reverse discrimination lawsuit against an MLS team.

In this pivotal case, Marlean Ames, a straight woman employed at the Ohio Department of Youth Services, claimed discrimination when a gay man received a promotion in her stead. The Supreme Court delivered a resounding unanimous verdict, concluding that the “background circumstances” rule contradicted Title VII, which aims to uphold equal protection against discrimination for everyone, regardless of demographic status.

Helmer Friedman LLP discusses nomination of Judge Ketanji Brown Jackson to U.S. Supreme Court.Justice Ketanji Brown-Jackson eloquently articulated the Court’s position, pointing out that the previous rule placed an unwarranted evidentiary burden on majority-group plaintiffs and strayed from the foundational texts and historical applications of Title VII. This decision highlights that claims of discrimination should be assessed on a level playing field, emphasizing the importance of protecting all individuals, as reinforced by the Court’s earlier ruling in Bostock v. Clayton County (2020).

The Ames ruling ushers in a significant shift for employers, who should prepare for an anticipated rise in discrimination claims across all demographic segments, including those traditionally viewed as part of the majority. This decision calls for a fresh evaluation of employment practices to ensure that they align with the Court’s mandate for equal treatment, moving away from outdated frameworks that previously imposed additional burdens on majority-group claimants.

In a thoughtful concurrence, Justice Clarence Thomas and Justice Neil Gorsuch spotlighted the broader implications of the McDonnell Douglas framework, which has guided assessments of discrimination claims since 1973. While this framework wasn’t directly challenged in Ames, they suggested that it might be re-evaluated in future cases, encouraging lower courts to follow general summary judgment standards applied in cases outside Title VII.

Age discrimination laws protect older employees from discriminatory policies - Helmer Friedman LLP.

This ruling, in conjunction with other significant decisions such as Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (2023) and Muldrow v. City of St. Louis (2024), is revitalizing the landscape of employment discrimination law. Employers are encouraged to focus on fostering equitable workplaces that champion the principles of non-discrimination across all demographics. By prioritizing compliance with the refined interpretations of Title VII articulated by the Supreme Court, organizations can create a more inclusive and harmonious work environment. Together, let’s embrace this opportunity for positive change and ensure that every individual is treated fairly and with respect!

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Whistleblower Suing Under Sarbanes-Oxley Act Need Not Prove Their Employer Acted With “Retaliatory Intent” 

Workplace discrimination lawyers Helmer Friedman LLP.

U.S. Supreme Court Holds That Whistleblower Suing Under Sarbanes-Oxley Act Need Not Prove Their Employer Acted With “Retaliatory Intent”

On February 8, 2024, in Murray v. UBS Securities, LLC, 2024 WL 478566 (U.S., 2024) the U.S. Supreme Court held, in a unanimous decision authored by Justice Sotomayor, that a whistleblower seeking to invoke the protections of the Sarbanes-Oxley Act need not prove that their employer acted with “retaliatory intent.” Instead, the whistleblower needs to merely show that their protected activity was a contributing factor in the employer’s unfavorable personnel action.

Before discussing the details of the case, it is important to note that Murray continues an important and surprising trend at a Supreme Court (stocked with far right-wing conservative Justices) that is generally hostile to the rights of employees and consumers – it, almost uniformly, sides with employees in retaliation cases. So, as the following list demonstrates, the Supreme Court has sided with employees in 10 out of the last 13 cases stretching back nearly 20 years:

  • Murray v. UBS Securities, LLC, 2024 WL 478566 (2024)(siding with employee)
  • Digital Realty Trust, Inc. v. Somers, 583 U.S. 149 (2018)(siding with employer)
  • Artis v. District of Columbia, 583 U.S. 71 (2018)(siding with employee)
  • Green v. Brennan, 578 U.S. 547 (2016)(siding with employee)
  • Heffernan v. City of Paterson, N.J., 578 U.S. 266 (2016)(siding with employee)
  • Department of Homeland Sec. v. MacLean, 574 U.S. 383 (2015)(siding with employer)
  • Lane v. Franks, 573 U.S. 228 (2014)(siding with employee)
  • Lawson v. FMR LLC, 571 U.S. 429 (2014)(siding with employee}
  • University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013)(siding with employer)
  • Thompson v. North American Stainless, LP, 562 U.S. 170 (2011)(siding with employee)
  • Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (2011)(siding with employee)
  • Staub v. Proctor Hosp., 562 U.S. 411 (2011)(siding with employee)
  • Crawford v. Metropolitan Government of Nashville and Davidson Cnty., Tenn., 555 U.S. 271 (2009)(siding with employee)
  • Gomez-Perez v. Potter, 553 U.S. 474 (2008)(siding with employee)
  • Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)(siding with employee)

In Murray, the plaintiff, Trevor Murray, was employed as a research strategist at the UBS securities firm, within the firm’s commercial mortgage-backed securities (CMBS) business. In that role, Murray was responsible for reporting on CMBS markets to current and future UBS customers. Securities and Exchange Commission (SEC) regulations required him to certify that his reports were produced independently and accurately reflected his own views. Murray alleged that, despite this requirement of independence, two leaders of the CMBS trading desk improperly pressured him to skew his reports to be more supportive of their business strategies, even instructing Murray to “clear [his] research articles with the desk” before publishing them.

Murray reported that conduct to his direct supervisor, Michael Schumacher asserting that it was “unethical” and “illegal.” Schumacher expressed sympathy for Murray’s situation but emphasized that it was “very important” that Murray not “alienate [his] internal client” (i.e., the trading desk). When Murray later informed Schumacher that the situation with the trading desk “was bad and getting worse,” as he was being left out of meetings and subjected to “constant efforts to skew [his] research,” Schumacher told him that he should just “write what the business line wanted.” Shortly after that exchange (and despite having given Murray a very strong performance review just a couple months earlier) Schumacher emailed his own supervisor and recommended that Murray “be removed from [UBS’s] head count.” Schumacher recommended in the alternative that, if the CMBS trading desk wanted him, Murray could be transferred to a desk analyst position, where he would not have SEC certification responsibilities. The trading desk declined to accept Murray as a transfer, and UBS fired him.

Murray then filed a complaint with the Department of Labor alleging that his termination violated § 1514A of Sarbanes-Oxley because he was fired in response to his internal reporting about fraud on shareholders. When the agency did not issue a final decision on his complaint within 180 days, Murray filed an action in federal court.

Murray’s claim went to trial. UBS moved for judgment as a matter of law, arguing, among other things, that Murray had “failed to produce any evidence that Schumacher possessed any sort of retaliatory animus toward him.” The District Court denied the motion.

The District Court instructed the jury that, in order to prove his § 1514A claim, Murray needed to establish four elements: (1) that he engaged in whistleblowing activity protected by Sarbanes-Oxley, (2) that UBS knew that he engaged in the protected activity, (3) that he suffered an adverse employment action (i.e., was fired), and (4) that his “protected activity was a contributing factor in the termination of his employment.” On the last element, the District Court further instructed the jury: “For a protected activity to be a contributing factor, it must have either alone or in combination with other factors tended to affect in any way UBS’s decision to terminate [his] employment.” The court explained that Murray was “not required to prove that his protected activity was the primary motivating factor in his termination, or that … UBS’s articulated reason for his termination was a pretext.” If Murray proved each of the four elements by a preponderance of the evidence, the District Court instructed, the burden would shift to UBS to “demonstrate by clear and convincing evidence that it would have terminated [Murray’s] employment even if he had not engaged in protected activity.”

During deliberations, the jury asked for clarification of the contributing-factor instruction. The court responded that the jury “should consider” whether “anyone with th[e] knowledge of [Murray’s] protected activity, because of the protected activity, affect[ed] in any way the decision to terminate [Murray’s] employment.” When the court previewed this response to the parties, UBS indicated that it “would be comfortable” with that formulation.

The jury found that Murray had established his § 1514A claim and that UBS had failed to prove, by clear and convincing evidence, that it would have fired Murray even if he had not engaged in protected activity. The jury also issued an advisory verdict on damages, recommending that Murray receive nearly $1 million.

After the trial, UBS again moved for judgment as a matter of law, which the court denied. The court then adopted the jury’s advisory verdict on damages and awarded an additional $1.769 million in attorney’s fees and costs. UBS appealed the decision, and Murray cross-appealed on the issues of back pay, reinstatement, and attorney’s fees.

The Second Circuit panel vacated the jury’s verdict and remanded for a new trial. The court identified the central question as “whether the Sarbanes-Oxley Act’s antiretaliation provision requires a whistleblower-employee to prove retaliatory intent,” and, contrary to the trial court, it concluded that the answer was yes.

On appeal, the Supreme Court reversed the finding that Sarbanes-Oxley Act’s antiretaliation provision does not require that a whistleblower-employee prove retaliatory intent on the part of his or her employer:

The Second Circuit’s opinion requiring whistleblowers to prove retaliatory intent placed that Circuit in direct conflict with the Fifth and Ninth Circuits, which had rejected any such requirement for § 1514A claims. This Court granted certiorari to resolve this disagreement.

Section 1514A’s text does not reference or include a “retaliatory intent” requirement, and the provision’s mandatory burden-shifting framework cannot be squared with such a requirement. While a whistleblower bringing a § 1514A claim must prove that his protected activity was a contributing factor in the unfavorable personnel action, he need not also prove that his employer acted with “retaliatory intent.”

The Second Circuit and UBS both rely heavily on the word “discriminate” in § 1514A to impose a “retaliatory intent” requirement on whistleblower plaintiffs. As UBS acknowledges, the Second Circuit’s holding was “expressly predicated” on the word “discriminate.” That word, however, cannot bear the weight that both the Second Circuit and UBS place on it.

Consider the statutory text: No employer subject to Sarbanes-Oxley “may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of ” the employee’s protected whistleblowing activity. § 1514A(a). To start, the placement of the word “discriminate” in the section’s catchall provision suggests that it is meant to capture other adverse employment actions that are not specifically listed, drawing meaning from the terms “discharge, demote, suspend, threaten, [and] harass” rather than imbuing those terms with a new or different meaning. Here, there is no dispute that Murray was “discharge[d],” and so it is not obvious that the “or in any other manner discriminate” clause has any relevance to his claim. According to UBS, though, “discriminate” in the catchall provision relates back to and characterizes “discharge,” such that “to be actionable, discharge must be a ‘manner’ of discriminating.” Accepting this statutory construction argument “for argument’s sake,” as this Court did in Bostock v. Clayton County, 590 U. S. 644, 657 (2020), the question is whether the word “discriminate” inherently requires retaliatory intent. It does not.

An animus-like “retaliatory intent” requirement is simply absent from the definition of the word “discriminate.” When an employer treats someone worse—whether by firing them, demoting them, or imposing some other unfavorable change in the terms and conditions of employment—“because of ” the employee’s protected whistleblowing activity, the employer violates § 1514A. It does not matter whether the employer was motivated by retaliatory animus or was motivated, for example, by the belief that the employee might be happier in a position that did not have SEC reporting requirements.

Murray v. UBS Securities, LLC, 2024 WL 478566, *6-8 (U.S., 2024)(cleaned up).

Thankfully, the Supreme Court’s Murray decision will lower the arbitrarily high “retaliatory animus” hurdle that some courts have previously required employees to overcome in order to prevail on their Sarbanes-Oxley retaliation claim.

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Civil Rights Queen: Constance Baker Motley and the Struggle for Equality

February 28, 2022 – As the Senate prepares to hold hearings on the historic nomination of Ketanji Brown Jackson, the first Black woman nominated to sit on the Supreme Court, it’s the perfect time to highlight a new biography about another Black woman who accomplished a series of firsts and who, in another, more modern, era, would almost certainly have been nominated to serve on the Supreme Court – Constance Baker Motley.  

Constance Baker Motley first Black woman to argue before SCOTUS. Constance Baker Motley was not only the first Black woman to argue before the Supreme Court (winning an astonishing nine of 10 cases), but she was also the first black woman to be appointed to the federal judiciary – President Lyndon B. Johnson appointed her to the Southern District of New York.

Motley began college at Fisk University, a historically black college in Nashville, Tennessee, but subsequently transferred to New York University, where she graduated with a Bachelor of Arts degree. She received her Bachelor of Laws from Columbia Law School. Motley then went to work for the NAACP Legal Defense and Educational Fund, Inc. as a civil rights lawyer, where she wrote the original complaint in the case of Brown v. Board of Education. Her first argument before the Supreme Court was in Meredith v. Fair; she won James Meredith’s effort to be the first black student to attend the University of Mississippi.

Civil Rights Queen Constance Baker MotleyIn her terrific new book on Motley’s life and legacy – called “Civil Rights Queen: Constance Baker Motley and the Struggle for Equality“- Harvard law professor Tomiko Brown-Nagin Poignantly describes Motley’s life from the time that she was born to a working-class family during the Great Depression, to her role as one of the principal strategists of the Civil Rights Movement and for her legal defense of Martin Luther King Jr., the Freedom Riders, and the Birmingham Children Marchers when she was a civil rights lawyer for the NAACP, to her service in the New York State Senate and as Manhattan Borough President, to her becoming the first Black woman serving in the federal judiciary.

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Justice Stephen Breyer Resigns – President Joe Biden Nominates Ketanji Brown Jackson To Be First Black Woman To Sit On Supreme Court

Helmer Friedman LLP discusses nomination of Judge Ketanji Brown Jackson to U.S. Supreme Court.

February 25, 2022 – On January 26, 2022, Justice Stephen Gerald Breyer notified the White House that he would retire at the end of the 2021-2022 term. One month later, on February 25, 2022, President Joseph Robinette Biden Jr. nominated Ketanji Brown Jackson to the Supreme Court, beginning a historic confirmation process for the first Black woman to sit on the highest court in the nation in its 223-year history.

Judge Jackson, who clerked for Justice Breyer, has worked as a public defender, a corporate attorney, a U.S. District Court judge, is currently sitting on the U.S. Court of Appeals for the District of Columbia. “If I’m fortunate enough to be confirmed as the next associate justice of the Supreme Court of the United States,” Judge Jackson commented in her prepared remarks about her nomination, “I can only hope that my life and career, my love of this country and the Constitution and my commitment to upholding the rule of law and the sacred principles upon which this great nation was founded, will inspire future generations of Americans.” 

Helmer Friedman LLP discusses President Bidens nomination of Judge Brown Jacksons to SCOTUS.

If confirmed, Justice Jackson won’t alter the Supreme Court’s ideological far-right conservative tilt because the overall makeup of the court will continue to include six conservatives and three liberals. Unfortunately, despite winning the popular vote in 7 of the last 8 elections, the Republicans have rigged the system to achieve a radical conservative majority. Indeed, when Justice Antonin Gregory Scalia died in February of an election year (2016), President Barack Hussein Obama’s nomination of Merrick Garland would have, if confirmed by the Senate, flipped the then five-to-four conservative court to a five-to-four liberal one. But Senator Mitch McConnel and his Republican caucus refused to hold a hearing on Garland’s nomination on the theory that court vacancies that arise during presidential election years should remain unfilled until the next president takes office. Then, when Justice Ruth Bader Ginsburg died in an election year (September 2020, less than two months before the presidential election), Senator Mitch McConnel and his Republican cronies hypocritically changed the rules and confirmed President Donald John Trump’s nomination of Amy Coney Barrett with lightning speed. “And just like that,” as Carrie Bradshaw would say, what should have been a 6 – 3 liberal court majority became the most radical right-wing conservative court since the Lochner era of 1897 to 1937.