ARB Issues Impactful Decision On Whistleblower Retaliation Causation Standard

The ARB recently addressed the standard for proving that protected activity was a "contributing factor" in adverse employment actions. It concluded that evidence showing that an employer would have made the same adverse action decision in the absence of protected activity does not bear on whether the protected activity "contributed" to the adverse action. Powers v. Union Pacific Railroad Co., ARB Case No. 13-034 (Mar. 20, 2015) (3-2 decision).

Background

In May 2007, Complainant injured his hand while operating a rail saw at work. He reported his injury to his supervisor and saw several doctors. He was told by his doctors that he would have a number of physical restrictions due to his injury, including a restriction on heavy lifting. A year later, Union Pacific hired an investigator who allegedly secretly recorded Powers engaging in various activities at his home, such as lifting heavy boxes. After viewing the footage, the Company terminated