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Whistleblower Claims: Sole Cause or Motivating Factor?


Whistleblowers, those individuals who have knowledge of illegal activity engaged in by their employers and report it, typically have certain protections against discrimination or retaliation by their employers. Deciding to be a whistleblower can be very difficult because of the risks, despite the protections that may be available. It is because of these risks that protections are available in order to encourage employees to report illegal activity. However, when an employee files a lawsuit because they believe they have been retaliated against, there is a certain standard that must be met. A recent case in Pennsylvania has shed some light on the necessary elements of a whistleblower claim.

DiFiore v. CSL Behring, LLC

This case involves the claims of a former pharmaceutical employee who was constructively discharged. The employee brought whistleblower claims under the False Claims Act (“FCA”) after she voiced her concerns about her employer engaging in off-label marketing of products. The issue that arose during litigation was whether the employee was required to prove retaliation by showing that her whistleblowing was the sole cause of the retaliation.

The employee, on the other hand, argued that she was only required to prove that her whistleblowing was at least a motivating factor in her wrongful discharge. In other words, she argued that her protected activity did not have to be the only reason she was discharged. She based this argument on a holding in a Third Circuit case.

The False Claims Act

It is not uncommon for businesses to attempt to defraud the federal government by making false claims for payment. Many of these cases involve Medicare or Medicaid fraud, or fraudulent federal contracts. The False Claims Act is a federal law that not only provides protection for whistleblowers who report fraudulent claims, but also provides substantial rewards to those employees, including a portion of the money recovered by the government as a result of their report.

The court’s reasoning in the DiFiore case

The Court considered the employee’s argument based on the Third Circuit case but held that the language in that decision regarding a “motivating factor” was extraneous to the decision, meaning that it did not constitute binding law. The Court also determined that two U.S. Supreme Court cases both held that the “motivating factor” test was inappropriate. Those cases involved claims under the Age Discrimination in Employment Act (“ADEA”) and Title VII of the Civil Rights Act, which contain “because of” language. That language is equated to “but-for” causation. In other words, the employee must demonstrate that the adverse action would not have occurred “but for” the retaliatory motivation. The False Claims Act contains the same language as the ADEA and Title VII.

If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced employment law attorneys at Michel | King . You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!

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