1 (Slip Opinion) OCTOBER TERM, 2023

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

## SUPREME COURT OF THE UNITED STATES

Syllabus

MURRAY v. UBS SECURITIES, LLC, ET AL

.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

No. 22–660. Argued October 10, 2023—Decided February 8, 2024
Congress enacted the whistleblower pr otections of the Sarbanes-Oxley

Act of 2002 to prohibit publicly traded comp anies from retaliating against employees who report what th ey reasonably be lieve to be in

stances of criminal fraud or securities law violations. Title 18 U. S. C. §1514A(a) specifically pr ovides that employers may not “discharge, de

mote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms an d conditions of employment be

cause of ” protected whistleblowing activity. In this case, Trevor Mur

ray filed a whistleblower action in District Court alleging that UBS terminated his employment in violation of §1514A. Murray had worked for UBS as a research strategist in a role that required him to certify—in accordance with applicable Securities and Exchange Com

mission regulations—that his reports to UBS customers on the firm’s securities business were independen tly produced and reflected his own views. UBS terminated Murray shortly after he informed his supervi

sor that two leaders of the UBS trad ing desk were engaging in what he believed to be unethical and illega l efforts to skew his independent reporting.

In the District Court, UBS argued it was entitled to judgment as a matter of law on Murray’s whistleblower claim because Murray “failed to produce any evidence that [his supervisor] possessed any sort of re

taliatory animus toward him.” The District Court denied the motion. As relevant here, it instructed the jury that, to prove his §1514A claim, Murray must establish by a prepon derance of the evidence that his “protected activity was a contributing factor in the termination of his employment.” App. 126–127. If Murray did so, the burden would shift to UBS to “demonstrate by clear and convincing evidence that it would have terminated [Murray’s] employme nt even if he had not engaged in2 MURRAY v. UBS SECURITIES, LLC

Syllabus

protected activity.” Id., at 130. The jury found that Murray had es

tablished his §1514A claim and UBS had failed to prove that it would have fired Murray even if he had not engaged in protected activity. On appeal, the Second Circuit vacated the jury’s verdict and remanded for a new trial. The Second Circuit held that “[r]etaliatory intent is an element of a section 1514A claim,” and the trial court erred by not in

structing the jury on Murray’s burd en to prove UBS’s retaliatory in

tent. 43 F. 4th 254, 258, 262–263.
Held : A whistleblower who invokes §1514A must prove that his pro

tected activity was a contributing factor in the employer’s unfavorable personnel action, but need not prove that his employer acted with “re

taliatory intent.” Pp. 7–15. (a) Section 1514A(a)’s text does not reference or include a “retalia

tory intent” requirem ent, and the provisio n’s mandatory burdenshifting framework cannot be squared with one. In explaining why, and consistent with the Second Circu it’s opinion, the Court treats “re

taliatory intent” as meaning something akin to animus.

Although the Second Circuit and UBS both rely on the word “dis

criminate” in §1514A(a) to impose a “retaliatory intent” requirement on whistleblower plaintiffs, the word “discriminate” cannot bear that weight. First, 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. But even accepting UBS’s argument that “discriminate” relates back to and characterizes “discharge,” the word “discriminate” simply does not require retaliatory intent . The “normal definiti on” of “discrimination” is “differential treatment.” Babb v. Wilkie , 589 U. S. 399, 405. When an employer treats a whistleblower differently, and worse, “because of ” his protected whistleblowing activity, that is actionable discrimi

nation, and the employer’s lack of “animosity” is “irrelevant.” Bostock

v. Clayton County , 590 U. S. 644, 658, 663. Pp. 7–10.

(b) In addition to having no basis in the statutory text, requiring a whistleblower to prove his employer’s retaliatory intent would ignore the statute’s mandatory burden-shift ing framework. Burden-shifting frameworks have long provided a key mechanism for getting at “the elusive factual question” of intent in employment discrimination cases. Watson v. Fort Worth Bank & Trust , 487 U. S. 977, 986 (quoting Texas Dept. of Community Affairs v. Burdine , 450 U. S. 248, 255, n. 8). Bur

den shifting “forc[es] the defendant to come forward with some re

sponse” to the employee’s circumstantial evidence. St. Mary’s Honor Center v. Hicks , 509 U. S. 502, 510–511. Congress decided in Sarbanes-Oxley that the plaintiff ’s burden on intent is only to show that3 Cite as: 601 U. S. ____ (2024)

Syllabus

the protected activity was a “contr ibuting factor in the unfavorable personnel action.” 49 U. S. C. §42121(b)(2)(B)(i). If the plaintiff makes that showing, the burden shifts to the employer to “demonstrat[e], by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of that behavior.” §42121(b)(2)(B)(ii). The contributi ng-factor burden-shifting frame

work is meant to be plaintiff-friendly. Here, the Second Circuit erred by making proof of “ret aliatory intent” a requir ement for satisfaction of the “contributing factor” element. 43 F. 4th, at 259–260. Showing that an employer acted with retalia tory animus is one way of proving that the protected activity was a cont ributing factor in the adverse em

ployment action, but it is not the only way. Pp. 10–13.

(c) UBS and its amici argue that, without a retaliatory intent re

quirement, innocent employers will fa ce liability for legitimate, nonre

taliatory personnel decisions. But the statute’s burd en-shifting frame

work does not lead to that result. Section 42121(b)(2)(B)(ii)’s sameaction causation inquiry asks whet her the employer would have taken the same action against an otherw ise identical employee who had not engaged in protected activity. While the contributing-factor frame

work that Congress chose in Sarbanes-O xley is not as protective of em

ployers as a motivating-factor framew ork, that is by design. This Court cannot override Congress’ po licy choice by giving employers more protection than the statute provides. Pp. 13–14. 43 F. 4th 254, reversed and remanded.

S OTOMAYOR , J., delivered the opinion for a unanimous Court. A LITO , J., filed a concurring opinion, in which B ARRETT , J., joined._________________

_________________ 1 Cite as: 601 U. S. ____ (2024)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the Unit ed States, Washingt on, D. C. 20543, pio@supremecourt.gov , of any typographical or other formal errors. 

## SUPREME COURT OF THE UNITED STATES

No. 22–660

TREVOR MURRAY, PETITIONER v. UBS SECURITIES, LLC, ET AL

.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[February 8, 2024]

J USTICE S OTOMAYOR delivered the opinion of the Court. Under the whistleblower-protection provision of the Sarbanes-Oxley Act of 2002, no covered employer may “dis

charge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of ” protected whistleblowing activity. 18 U. S. C. §1514A(a). When a whistleblower invokes this provision, he bears the initial burden of showing that his protected activity “was a contributing fac

tor in the unfavorable personnel action alleged in the com

plaint.” 49 U. S. C. §42121(b)(2)(B)(iii). The burden then shifts to the employer to show that it “would have taken the same unfavorable personnel action in the absence of ” the protected activity. §42121(b)(2)(B)(iv). The question before this Cou rt is whether the phrase “dis

criminate against an employee . . . because of ” in §1514A(a) requires a whistleblower additionally to prove that his em

ployer acted with “retaliatory in tent.” Below, the Court of Appeals for the Second Circuit endorsed such a require

ment. This Court disagrees.2 MURRAY v. UBS SECURITIES, LLC

Opinion of the Court

I Congress enacted the Sarbanes- Oxley Act in the wake of the Enron scandal to “ ‘prevent and punish corporate and criminal fraud, protect the victims of such fraud, preserve evidence of such fraud, and hold wrongdoers accountable for their actions.’ ” Lawson v. FMR LLC , 571 U. S. 429, 434 (2014) (quoting S. Rep. No. 107–146, p. 2 (2002) (hereinaf

ter S. Rep.)). “Of particular concern to Congress was abun

dant evidence that Enron had succeeded in perpetuating its massive shareholder fraud in large part due to a ‘corporate code of silence’ ” that “ ‘discourage[d] employees from report

ing fraudulent behavior not only to the proper authorities, such as the FBI and the SEC, but even internally.’ ” 571 U. S., at 435 (quoting S. Rep., at 4–5; alteration in original). Indeed, employees of Enron who had attempted to report corporate misconduct internally were often fired. Congress’ response was 18 U. S. C. §1514A, which pro

hibits publicly traded compani es from retaliating against employees who report what they reasonably believe to be instances of criminal fraud or securities law violations. The provision establishes that no employer may “discharge, de

mote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and condi

tions of employment because of ” the employee’s protected whistleblowing activity. §1514A(a). If an employer violates this provision, the employee can file a complaint with the Department of Labor seeking reinstatement, back pay, compensation, and other relief. §§1514A(b)(1)(A), (c). If there is no final decision from the Secretary of Labor within 180 days, the employee can file suit in federal court seeking the same relief. §§1514A(b)(1)(B), (c). If the whistleblower does bring an action in federal court, Sarbanes-Oxley directs the court to apply the “legal bur

dens of proof set forth in section 42121(b) of title 49, United States Code”—a provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21).3 Cite as: 601 U. S. ____ (2024)

Opinion of the Court §1514A(b)(2)(C). This incorporated burden-shifting frame

work provides that the whistleblower bears the burden to prove that his protected activity “was a contributing factor in the unfavorable personnel action alleged in the com

plaint.” 49 U. S. C. §42121(b)(2)(B)(i). If the whistleblower makes that showing, the burden shifts to the employer to show “by clear and convincing evidence” that it “would have taken the same unfavorable personnel action in the absence of ” the protected activity. §42121(b)(2)(B)(ii). This framework is not unique to Sarbanes-Oxley and AIR 21. It originated in the Whistleblower Protection Act of 1989 (WPA), 5 U. S. C. §1221(e), which provides legal pro

tection for whistleblowers within the civil service. The framework was meant to relieve whistleblowing employees of the “excessively heavy burden” under then-existing law of showing that their protected activity was a “ ‘significant’, ‘motivating’, ‘substantial’, or ‘predominant’ ” factor in the adverse personnel action, and it reflected a determination that “[w]histleblowing should ne ver be a factor that contrib

utes in any way to an adverse personnel action.” 135 Cong. Rec. 5032, 5033 (1989) (Explanatory Statement on S. 20, 101st Cong., 1st Sess. (1989)). Congress then incorporated the easier-to-satisfy “contributing factor” framework into a series of similar whistleblower statutes that protect non

civil-service employees in industries where whistleblowing plays an especially important ro le in protecting the public welfare—including, as noted above, the airline industry (AIR 21) and the securities industry (Sarbanes-Oxley). 1

——————

1 See also, e

. g ., Motor Vehicle and Highway Safety Improvement Act of 2012, §31307(b), 126 Stat. 766–769 (enact ing 49 U. S. C. §30171(b)); FDA Food Safety Modernization Act, §402, 124 Stat. 3968–3971 (amending the Federal Food, Drug, and Cosmetic Act, 21 U. S. C. §301 et seq. , by adding 21 U. S. C. §399d(b)); Consumer Product Safety Improvement Act of 2008, §219(a), 122 Stat. 3063–3065 (e nacting 15 U. S. C. §2087(b)); En

ergy Policy Act of 1992, §2902(d), 106 Stat. 3123–3124 (amending Energy Reorganization Act of 1974, 42 U. S. C. §5801 et seq. , by adding §5851(b)(3)).4 MURRAY v. UBS SECURITIES, LLC

Opinion of the Court

II In 2011, petitioner Trevor Murray was employed as a re

search strategist at securities firm UBS, 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. See 17 CFR §242.501(a) (2022). Murray contends that, despite this requirement of independence, two leaders of the CMBS trading desk im

properly pressured him to skew his reports to be more sup

portive of their business strategies, even instructing Mur

ray to “clear [his] research a rticles with the desk” before publishing them. 1 App. in No. 20–4202 (CA2), p. 254. Murray reported that condu ct to his direct supervisor, Michael Schumacher, in December 2011 and again in Jan

uary 2012, asserting that it was “unethical” and “illegal.” App. 28. Schumacher expressed sympathy for Murray’s sit

uation but emphasized that it was “very important” that Murray not “alienate [his] internal client” ( i

. e ., the trading desk). Ibid. 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.” Id ., at 29–30. Shortly after that exchange (and despite having given Murray a very strong performance re

view just a couple months earlier) Schumacher emailed his own supervisor and recommended that Murray “be re

moved from [UBS’s] head count.” Id ., at 39. Schumacher recommended in the alternative that, if the CMBS trading desk wanted him, Murray could be transferred to a desk analyst position, where he woul d not have SEC certification responsibilities. The trading desk declined to accept Mur

ray as a transfer, and UBS fired him in February 2012.5 Cite as: 601 U. S. ____ (2024)

Opinion of the Court 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 in

ternal reporting about fraud on shareholders. When the agency did not issue a final deci sion 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 Mur

ray had “failed to produce any evidence that Schumacher possessed any sort of retaliatory animus toward him.” No. 1:14–cv–00927 (SDNY, Dec. 14, 2017), ECF Doc. 244, p. 6. 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 con tributing factor in the termina

tion of his employment.” App. 126–127. On the last ele

ment, the District Court further instructed the jury: “For a protected activity to be a co ntributing factor, it must have either alone or in combination with other factors tended to affect in any way UBS’s decision to terminate [his] employ

ment.” Id ., at 130. The court explained that Murray was “not required to prove that hi s protected activity was the primary motivating factor in his termination, or that . . . UBS’s articulated reason for his termination was a pretext.” Ibid. If Murray proved each of the four elements by a pre

ponderance 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 [Mur

ray’s] employment even if he had not engaged in protected activity.” Ibid. During deliberations, the jury asked for clarification of the contributing-factor instru ction. The court responded6 MURRAY v. UBS SECURITIES, LLC

Opinion of the Court 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 ter

minate [Murray’s] employment.” Id ., at 180. When the court previewed this response to the parties, UBS indicated that it “would be comfortable” with that formulation. Id

., at 140. The jury found that Murray had established his §1514A claim and that UBS had failed to prove, by clear and con

vincing evidence, that it would have fired Murray even if he had not engaged in protected a ctivity. (In that regard, UBS had argued to the jury that market-wide difficulties and a $2-billion loss on a UBS trading desk in London had re

quired the elimination of certain positions, including Mur

ray’s.) 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 mat

ter of law, which the court denied. The court then adopted the jury’s advisory verdict on damages and awarded an ad

ditional $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 va cated the jury’s verdict and remanded for a new trial. The court identified the central question as “whether the Sarbanes-Oxley Act’s antiretalia

tion provision requires a whistleblower-employee to prove retaliatory intent,” and, contrary to the trial court, it con

cluded that the answer was yes. 43 F. 4th 254, 258 (2022). The court acknowledged that the jury instructions correctly identified the four elements of a §1514A claim, consistent with Circuit precedent. The court concluded, however, that the further instruction on the contributing-factor element was wrong as a matter of law. Looking to the text of §1514A and focusing in on the phrase “discriminate . . . because of,” the court nevertheless held that “to prevail on the ‘contributing factor’ element of7 Cite as: 601 U. S. ____ (2024)

Opinion of the Court a [§1514A] antiretaliation claim, a whistleblower-employee must prove that the employer took the adverse employment action against the whistleblower-employee with retaliatory intent.” Id ., at 259–260. The court noted that this holding was consistent with its recent “interpretation of nearly identical language in the Federal Railroad Safety Act.” Id

., at 260 (discussing Tompkins v. Metro-North Commuter R. Co. , 983 F. 3d 74 (CA2 2020)). The court further deter

mined that “the district court’s failure to instruct the jury on Murray’s burden to prove UBS’s retaliatory intent” was not harmless—despite “circumstantial evidence at trial that UBS terminated Murray in retaliation for whistleblow

ing,” such as the close temporal proximity between Mur

ray’s whistleblowing and termination and the fact that Schumacher had given Murray a good performance evalua

tion prior to his whistleblowing. 43 F. 4th, at 262. The court concluded that “[r]etaliatory intent is an element of a section 1514A claim,” and “[t]he district court erred by fail

ing to instruct the jury on Murray’s burden to prove UBS’s retaliatory intent.” Id ., at 262–263. 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. Compare id ., at 262, with Halliburton, Inc. v. Administrative Review Bd. , 771 F. 3d 254, 263 (CA5 2014) ( per curiam ) (holding that retal

iatory intent is not an element of a §1514A claim); Coppinger-Martin v. Solis , 627 F. 3d 745, 750 (CA9 2010) (same). This Court granted certiorari to resolve this disa

greement. 598 U. S. ___ (2023).

III
Section 1514A’s text does not reference or include a “re

taliatory intent” requirement, and the provision’s manda

tory burden-shifting framework cannot be squared with such a requirement. While a whistleblower bringing a8 MURRAY v. UBS SECURITIES, LLC

Opinion of the Court §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 “retalia

tory intent.” Before explaining why a §1514A claim does not require proof of “retaliatory intent,” it is necessary to understand what that term means. The Second Circuit seemed to con

ceive of “retaliatory intent” as “prejudice” or “animus.” 43 F. 4th, at 259, 261. UBS insists that it means something else, arguing that “[t]he Second Circuit mentioned ‘animus’ only twice” and that the Circuit explicitly required “a show

ing of ‘retaliatory intent,’ not hostile feelings toward the employee.” Brief for Respondents 27, n. 3. UBS’s circular definition does not reveal any thing about what “retaliatory intent” means, however, and UB S itself equated retaliatory intent with “animus” in its briefing below. See supra , at 5. Thus, consistent with the Second Circuit’s opinion, this Court treats “retaliatory intent” as something akin to ani

mus. See also Brief for United States as Amicus Curiae 16 (suggesting that an employer acts with “retaliatory intent” “where the employer act[s] out of prejudice, animus, or com

parable hostile or culpable intent”).

A The Second Circuit and UBS both rely heavily on the word “discriminate” in §1514A to impose a “retaliatory in

tent” requirement on whistleb lower plaintiffs. As UBS acknowledges, the Second Circuit’s holding was “expressly predicated” on the word “discriminate.” Brief in Opposition 11. 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 employ

ment because of ” the employee’s protected whistleblowing9 Cite as: 601 U. S. ____ (2024)

Opinion of the Court 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 ac

tions that are not specifically listed, drawing meaning from the terms “discharge, demote, suspend, threaten, [and] har

ass” rather than imbuing those terms with a new or differ

ent meaning. See, e

. g ., Brogan v. United States , 522 U. S. 398, 403, n. 2 (1998) (“[W]hen a general term follows a spe

cific one, the general term should be understood as a refer

ence to subjects akin to the one with specific enumeration”). 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. Ac

cording to UBS, though, “discriminate” in the catchall pro

vision relates back to and characterizes “discharge,” such that “to be actionable, discharge must be a ‘manner’ of dis

criminating.” Brief for Respondents 11. 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. In Babb v. Wilkie , 589 U. S. 399 (2020), this Court ex

plained that the “normal definition” of “discrimination” is “differential treatment.” Id ., at 405 (quoting Jackson v. Bir

mingham Bd. of Ed. , 544 U. S. 167, 174 (2005); internal quotation marks omitted). In Bostock , the Court likewise observed that “discriminate” typically means simply “ ‘[t]o make a difference in treatment or favor (of one as compared with others).’” 590 U. S., at 657 (quoting Webster’s New International Dictionary 745 (2d ed. 1954)). Prohibited dis

crimination occurs when an employer “intentionally treats a person worse because of ” a protected characteristic. 590 U. S., at 658

. In elaborating on the meaning of “discrimi

nate,” Bostock made clear that a lack of “animosity” is “ir

relevant” to a claim of discrimination under Title VII. Id

., at 663; see also Automotive Workers v. Johnson Controls,10 MURRAY v. UBS SECURITIES, LLC

Opinion of the Court

Inc. , 499 U. S. 187, 199 (1991) (explaining that a prohibition on discrimination “does not depend on why the employer discriminates” or the presence of “malevolent motive”). An animus-like “retaliatory intent” requirement is simply absent from the definition of the word “discrimi

nate.” When an employer treats someone worse—whether by firing them, demoting them , or imposing some other un

favorable change in the terms and conditions of employ

ment—“because of ” the employee’s protected whistleblow

ing activity, the employer violates §1514A. It does not matter whether the employer wa s 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. The Second Circuit was wrong when it held that the word “discriminate” in the statute’s catchall provision imposes an additional requirement that the whistleblower plaintiff prove the employer’s “retaliatory intent” or animus. Ac

cepting that the word “discriminate” is relevant to the in

tent inquiry, the only intent that §1514A requires is the in

tent to take some adverse employment action against the whistleblowing employee “because of ” his protected whis

tleblowing activity. The statute is clear that whether an employer “discriminated” in that sense has to be resolved through the contributing-factor burden-shifting framework that applies to Sarbanes-Oxley whistleblower claims.

B Statutory context confirms that the word “discriminate” does not import a “retaliatory intent” requirement: Requir

ing a whistleblower to prove his employer’s retaliatory ani

mus would ignore the statute’s mandatory burden-shifting framework. The burden-shifting framework was conspicu

ously absent from the Second Circuit’s opinion, and UBS now insists that the statute’ s burden shifting addresses only “causation, not intent.” Brief for Respondents 11. Not11 Cite as: 601 U. S. ____ (2024)

Opinion of the Court so. Burden-shifting framew orks have long provided a mechanism for getting at intent in employment discrimina

tion cases, and the contributing-factor burden-shifting framework is meant to be more lenient than most. Consider the burden-shifting framework this Court has devised for certain Title VII claims. In Watson v. Fort Worth Bank & Trust , 487 U. S. 977 (1988), the Court ex

plained that “[i]n order to facilitate the orderly considera

tion of relevant evidence,” courts rely upon “a series of shift

ing evidentiary burdens that are ‘intended progressively to sharpen the inquiry into the elusive factual question of in

tentional discrimination.’ ” Id. , at 986 (quoting Texas Dept. of Community Affairs v. Burdine , 450 U. S. 248, 255, n. 8 (1981)). This idea applies with equal force to the statutory framework here: Because discri minatory intent is difficult to prove, and because employers “contro[l] most of the cards,” 135 Cong. Rec., at 5033, burden shifting plays the necessary role of “forcing the defendant to come forward with some response” to the employee’s circumstantial evi

dence, St. Mary’s Honor Center v. Hicks , 509 U. S. 502, 510– 511 (1993). The result is that the trier of fact has the full picture before it and can make the ultimate determination as to whether the employer intentionally treated the em

ployee differently, and worse, because of the employee’s pro

tected trait or activity. The burden-shifting framewor k provides a means of get

ting at intent, and Congress here has decided that the plaintiff ’s burden on intent is simply to show that the pro

tected activity was a “contributing factor in the unfavorable personnel action.” 49 U. S. C. §42121(b)(2)(B)(i); see 18 U. S. C. §1514A(b)(2)(C) (explaining that an action brought in federal court “shall be governed by the legal burdens of proof set forth in section 42121(b)”). Once the employee makes that showing, the burden shifts to the employer to “demonstrat[e], by clear and convincing evidence, that the12 MURRAY v. UBS SECURITIES, LLC

Opinion of the Court employer would have taken the same unfavorable person

nel action in the absence of that behavior.” 49 U. S. C. §42121(b)(2)(B)(ii). While many statutes dealing with em

ployment discrimination apply a higher bar, requiring the plaintiff to show that his protected activity was a motivat

ing or substantial factor in the adverse action, see, e

. g ., EEOC v. Abercrombie & Fitch Stores, Inc. , 575 U. S. 768, 772–773 (2015) (discussing burden in Title VII context), the incorporation of the contributing-factor standard in Sarbanes-Oxley reflects a judgment that “ ‘personnel ac

tions against employees should quite simply not be based on protected [whistleblowing] activities’ ”—not even a little bit. Marano v. Department of Justice , 2 F. 3d 1137, 1141 (CA Fed. 1993) (quoting S. Rep. No. 100–413, p. 16 (1988) (discussing WPA); brackets omitted). While the Second Circuit attempted to make “retaliatory intent” a requirement for sati sfaction of the “contributing factor” element, 43 F. 4th, at 259–260, UBS does not ask this Court to follow suit, and for good reason. The ordinary meanings of the words “contribute” and “factor” suggest that the phrase “contributing factor” is broad indeed. See Webster’s New World College Dictionary 317 (4th ed. 1999) (defining “contribute,” in the re levant sense, to mean “to have a share in bringing about (a result); be partly respon

sible for”); id. , at 508 (defining “factor” as “any of the cir

cumstances, conditions, etc. that bring about a result”). Showing that an employer acted with retaliatory animus is one way of proving that the protected activity was a con

tributing factor in the adverse employment action, but it is not the only way. Here, the burden-shifting framework worked as it should to “ ‘sharpen the inquiry into the elusive factual question of intentional discrimination.’ ” Watson , 487 U. S., at 986 (quoting Burdine , 450 U. S., at 255, n. 8). The jury heard both sides of the story. It then determined that Murray had shown that his protected activity was a contributing factor13 Cite as: 601 U. S. ____ (2024)

Opinion of the Court in his firing while UBS had not shown that it would have taken the same action in the absence of his protected activ

ity. That burden shifting—and not some separate, heavier burden on the plaintiff to show “retaliatory intent”—is what the statute requires. 2

C
UBS and its amici argue that, without a retaliatory in

tent requirement, innocent employers will face liability for legitimate, nonretaliatory pers onnel decisions. See Brief for Respondents 33–34; Brief for Chamber of Commerce of the United States of America as Amicus Curiae 22–24. UBS posits a hypothetical where an employee’s whistleblowing causes a client to end their relationship with the company, leaving the whistleblower without any work and ultimately leading to the elimination of the whistleblower’s position. UBS asserts that “[u]nder petitioner’s view, the employer would be liable for retaliation, despite the absence of any intent to retaliate.” Brief fo r Respondents 34. The statute, properly understood, does not lead to that result. The statute’s burden-shifting framework provides that an employer will not be held liable where it “demonstrates, by clear and convincing evidence, that [it] would have taken the same unfavorable personnel action in the absence of ” the protected behavior. 49 U. S. C. §42121(b)(2)(B)(ii). The right way to think about that kind of same-action causation

——————

2 UBS also asks this Court to affirm on an alternative basis. UBS claims that the Second Circuit held that the initial jury instruction on the contributing-factor el ement, which allowed the jury to find that Mur

ray’s protected activity was a contributing factor if it “ ‘tended to affect in any way UBS’s decision to terminate [his] employment,’ ” independently required the court to set aside the ju ry’s verdict. Brief for Respondents 47. UBS is wrong to characterize the Second Circuit’s footnoted discus

sion of this instruction as an alternative holding. See 43 F. 4th 254, 259,

n. 4 (2022). On remand, the Second Circuit remains free to consider UBS’s separate argument regarding th is initial instruction, but this Court did not grant certiorari to address that issue.14 MURRAY v. UBS SECURITIES, LLC

Opinion of the Court analysis is to “change one thing at a time and see if the out

come changes.” Bostock , 590 U. S., at 656. The question is whether the employer would have “retain[ed] an otherwise identical employee” who had not engaged in the protected activity. Id ., at 660. As the Federal Circuit has explained in the WPA context, the same-action analysis “does not re

quire . . . that the adverse personnel action be based on facts ‘completely separate and distinct from protected whis

tleblowing disclosures.’ ” Watson v. Department of Justice

, 64 F. 3d 1524, 1528 (1995). In that case, the correct inquiry was whether the employer would have taken the same ac

tion if it had learned of the contents of the employee’s pro

tected disclosure through other means. Ibid. In UBS’s hy

pothetical, the relevant inquiry would be whether the employer still would have fired the employee if the client had left for some other reason. If so, it will have no trouble prevailing under the statute. To be sure, the contributing-factor framework that Con

gress chose here is not as protective of employers as a motivating-factor framework. That is by design. Congress has employed the contributing-factor framework in con

texts where the health, safety, or well-being of the public may well depend on whistleblo wers feeling empowered to come forward. This Court canno t override that policy choice by giving employers more protection than the statute itself provides.

* * * A whistleblower who invokes 18 U. S. C. §1514A bears the burden to prove that his protected activity “was a con

tributing factor in the unfavorable personnel action alleged in the complaint,” 49 U. S. C. §42121(b)(2)(B)(i), but he is not required to make some fu rther showing that his em

ployer acted with “retaliatory in tent.” The judgment of the U. S. Court of Appeals for the Second Circuit is reversed for the reasons explained above, and the case is remanded for15 Cite as: 601 U. S. ____ (2024)

Opinion of the Court further proceedings consistent with this opinion.

It is so ordered._________________

_________________ 1 Cite as: 601 U. S. ____ (2024)

A LITO , J., concurring 

## SUPREME COURT OF THE UNITED STATES

No. 22–660

TREVOR MURRAY, PETITIONER v. UBS SECURITIES, LLC, ET AL

.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[February 8, 2024]

J USTICE A LITO , with whom J USTICE B ARRETT joins, con

curring. I agree with the Court that a plaintiff suing under the whistleblower-protection prov ision of the Sarbanes-Oxley Act need not prove that his or her employer acted with “an

imus,” a term that denotes “prejudic[e]” or “ill will.”* Mer

riam-Webster’s Collegiate Dictionary 46 (10th ed. 1996); American Heritage Dictionary 73 (3d ed. 1992). The statute makes no mention of “animus” or any of its synonyms, andwe have no ground for adding it in as an additional, nonstatutory requirement. I write separately to explain in sim

ple terms how the statute work s and to reiterate that our rejection of an “animus” requirement does not read intent out of the statute. Rather, as the Court confirms, a plaintiff must still show intent to discriminate. Ante, at 9. A Sarbanes-Oxley plaintiff must ultimately prove that his or her employer “discharge[d], demote[d], suspend[ed], threaten[ed], harass[ed], or in any other manner discrimi

nate[d] against” him or her “because of ” protected whistleblowing. 18 U. S. C. §1514A(a). The phrase “in any other manner discriminate” suggests that the adverse action—

——————

* The Court uses the term “retaliato ry intent” as a synonym for “ani

mus.” See ante, at 8. All references in the opinion to “retaliatory intent” must be understood to carry that meaning.2 MURRAY v. UBS SECURITIES, LLC

A LITO , J., concurring here, petitioner’s discharge—m ust be a form of discrimina

tion. Cf. Massachusetts v. EPA , 549 U. S. 497, 557 (2007) (Scalia, J., dissenting) (noting that when a catchall phrase is “limited,” the other items in the list “must be viewed . . . in light of that category”). And a discriminatory discharge that is made “because of ” a particular factor necessarily in

volves an intentional choice in which that factor plays some role in the employer’s thinking. As the Court puts it, the plaintiff must prove that the employer “ ‘intentionally treat[ed the plaintiff] worse because of ’ ” the protected con

duct. Ante, at 9 (quoting Bostock v. Clayton County , 590 U. S. 644, 658 (2020)). To structure the presentation of proof in a case broughtunder the whistleblower-protection provision, SarbanesOxley adopts a burden-shifting framework. See 18 U. S. C. §1514A(b)(2)(C); 49 U. S. C. §42121(b)(2)(B). This frame

work provides the “mechanism for getting at” discrimina

tory intent. Ante, at 11. Under this framework, the plain

tiff must show that differential treatment was at least in part “because of” his or her protected conduct, §1514A(a), and was thus a “contributing factor” in the employer’s deci

sion-making process. §42121(b)(2)(B)(iii). This requires proof of intent; that is, the plaintiff must show that a reason for the adverse decision was the employee’s protected con

duct. The plaintiff need not prove that the protected con

duct was the only reason or even that it was a principal rea

son for the adverse decision. Showing that it “help[ed] to cause or bring about” that decision is enough. Concise Ox

ford Dictionary 310 (10th ed. 1999); Webster’s Third New International Dictionary 496 (1993) (defining “contrib

uting” as “ha[ving] a part in producing an effect”). If the plaintiff makes that showing, the statute’s intent requirement is met, and the only open question is causa

tion. On that element, the burden shifts to the employer to prove “by clear and convincing evidence that [it] would have taken the same unfavorable personnel action” alleged in the3 Cite as: 601 U. S. ____ (2024)

A LITO , J., concurring complaint. §42121(b)(2)(B)(iv). In other words, it must show that the plaintiff ’s protected conduct did not cause the challenged employment decision. And if the employer sat

isfies that burden, the element of causation has not been proved. On the understanding that this is the interpretation adopted today, I join the opinion of the Court.