Murray v. UBS Securities, LLC

P R E L I M I N A R Y P R I N T
Volume 601 U. S. Part 1
Pages 23–41
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
February 8, 2024
REBECCA A. WOMELDORF
reporter of decisions
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23
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 protections of the Sarbanes-Oxley
Act of 2002 to prohibit publicly traded companies from retaliating
against employees who report what they reasonably believe to be in-
stances of criminal fraud or securities law violations. Title 18 U. S. C.
§ 1514A(a) specifcally provides that employers may not “discharge, de-
mote, suspend, threaten, harass, or in any other manner discriminate
against an employee in the terms and conditions of employment because
of ” protected whistleblowing activity. In this case, Trevor Murray fled
a whistleblower action in federal 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 accord-
ance with applicable Securities and Exchange Commission regulations—
that his reports to UBS customers on the frm's securities business were
independently produced and refected his own views. UBS terminated
Murray shortly after he informed his supervisor that two leaders of the
UBS trading desk were engaging in what he believed to be unethical
and illegal 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 preponderance of the evidence that his “pro-
tected activity was a contributing factor in the termination of his em-
ployment.” 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] employment even if he had not engaged in
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 fred 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 burden to prove UBS's retaliatory intent.
43 F. 4th 254, 258, 262–263.

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24 MURRA
Y v. UBS SECURITIES, LLC
Syllabus
Held: A whistleblower who invokes § 1514A must prove that his protected
ac
tivity was a contributing factor in the employer's unfavorable person-
nel action, but need not prove that his employer acted with “retaliatory
intent.” Pp. 32–39.
(a) Section 1514A(a)'s text does not reference or include a “retaliatory
intent” requirement, and the provision's mandatory burden-shifting
framework cannot be squared with one. In explaining why, and consist-
ent with the Second Circuit's opinion, the Court treats “retaliatory in-
tent” as meaning something akin to animus.
Although the Second Circuit and UBS both rely on the word “discrim-
inate” 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 specifcally 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 re-
quire retaliatory intent. The “normal defnition” 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 discrimination, and
the employer's lack of “animosity” is “irrelevant.” Bostock v. Clayton
County, 590 U. S. 644, 658, 663. Pp. 32–35.
(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-shifting 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 that the pro-
tected activity was a “contributing 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 ac ti on i n the absence of that behav i or. ”
§ 42121(b)(2)(B)(ii). The contributing-factor burden-shifting framework
is meant to be plaintiff-friendly. Here, the Second Circuit erred by
making proof of “retaliatory intent” a requirement for satisfaction of the

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Syllabus
“contributing factor” element. 43 F. 4th, at 259–260. Showing that an
employer
acted with retaliatory animus is one way of proving that the
protected activity was a contributing factor in the adverse employment
action, but it is not the only way. Pp. 35–37.
(c) UBS and its amici argue that, without a retaliatory intent
requirement, innocent employers will face liability for legitimate, nonre-
taliatory personnel decisions. But the statute's burden-shifting frame-
work does not lead to that result. Section 42121(b)(2)(B)(ii)'s same-
action causation inquiry asks whether the employer would have taken
the same action against an otherwise identical employee who had not
engaged in protected activity. While the contributing-factor frame-
work that Congress chose in Sarbanes-Oxley is not as protective of em-
ployers as a motivating-factor framework, that is by design. This
Court cannot override Congress' policy choice by giving employers more
protection than the statute provides. Pp. 38–39.
43 F. 4th 254, reversed and remanded.
Sotomayor, J., delivered the opinion for a unanimous Court. Alito, J.,
fled a concurring opinion, in which Barrett, J., joined, post, p. 39.
Easha Anand argued the cause for petitioner. With her
on the briefs were Robert L. Herbst, Scott A. Korenbaum,
Pamela S. Karlan, Robert B. Stulberg, and Patrick J.
Walsh.
Anthony A. Yang argued the cause for the United States
as amicus curiae urging reversal. With him on the brief
were Solicitor General Prelogar, Deputy Solicitor General
Kneedler, Joseph E. Abboud, Anne W. King, Megan Barbero,
Michael A. Conley, and Thomas J. Karr.
Eugene Scalia argued the cause for respondents. With
him on the brief were Thomas G. Hungar, Andrew G. I. Kil-
berg, Anna L. Casey, and Gabrielle Levin.*
*Briefs of amici curiae urging reversal were fled for the Academy of
Rail Labor Attorneys by Adam W. Hansen; for the Anti-Fraud Coalition
et al. by Samuel J. Buffone, Jr.; for the National Whistleblower Center
by Stephen M. Kohn, Michael D. Kohn, and David K. Colapinto; for Public
Citizen by Adam R. Pulver, Allison M. Zieve, and Scott L. Nelson; and
for Sen. Charles E. Grassley et al. by Alan B. Morrison, Jason Zucker-
man, and Thomas M. Devine.
Briefs of amici curiae urging affrmance were fled for Airlines for
America by Anton Metlitsky and Jason Zarrow; for the American Associ-
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26 MURRA
Y v. UBS SECURITIES, LLC
Opinion of the Court
Justice Sotomayor delivered the opinion of the Court.
U
nder the wh istleblower-protec ti on prov isi on 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 whistle-
blowing activity. 18 U. S. C. § 1514A(a). When a whistle-
blower 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 Court 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 intent.” Below, the Court of
Appeals for the Second Circuit endorsed such a requirement.
This Court disagrees.
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) (hereinafter
ation of Railroads by David M. Morrell and Donald Munro; for the Cham-
ber of Commerce of the United States of America by Kannon K. Shanmu-
gam, William T. Marks, and Tyler S. Badgley; for the Securities Industry
and Financial Markets Association by David B. Salmons, Sarah E. Bouch-
ard, and Samuel S. Shaulson; for the Society for Human Resource Man-
agement by Christopher F. Robertson and Owen R. Wol fe; and for the
Washington Legal Foundation by John M. Masslon II and Cory L.
Andrews.
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27
Opinion of the Court
S. Rep.)). “Of particular concern to Congress was abundant
e
vidence that Enron had succeeded in perpetuating its mas-
sive shareholder fraud in large part due to a `corporate code
of silence' ” that “ `discourage[d] employees from reporting
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 fred.
Congress' response was 18 U. S. C. § 1514A, which prohib-
its publicly traded companies from retaliating against em-
ployees who report what they reasonably believe to be in-
stances 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 dis-
criminate against an employee in the terms and conditions
of employment because of ” the employee's protected whistle-
blowing activity. § 1514A(a). If an employer violates this
provision, the employee can fle a complaint with the Depart-
ment of Labor seeking reinstatement, back pay, compensa-
tion, and other relief. §§ 1514A(b)(1)(A), (c). If there is no
fnal decision from the Secretary of Labor within 180 days,
the employee can fle 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 burdens
of proof set forth in section 42121(b) of title 49, United States
Code”—a provision of the Wendell H. Ford Aviation Invest-
ment and Reform Act for the 21st Century (AIR 21).
§ 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 complaint.”
49 U. S. C. § 42121(b)(2)(B)(i). If the whistleblower makes
that showing, the burden shifts to the employer to show “by
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28 MURRA
Y v. UBS SECURITIES, LLC
Opinion of the Court
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 protec-
tion for whistleblowers within the civil service. The frame-
work was meant to relieve whistleblowing employees of the
“excessively heavy burden” under then-existing law of show-
ing that their protected activity was a “ `signifcant', `moti-
vating ', `substantial', or `predominant' ” factor in the adverse
personnel action, and it refected a determination that
“[w]histleblowing should never be a factor that contributes
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 se-
ries of similar whistleblower statutes that protect non-civil-
service employees in industries where whistleblowing plays
an especially important role in protecting the public wel-
fare—including, as noted above, the airline industry (AIR
21) and the securities industry (Sarbanes-Oxley).
1
II
In 2011, petitioner Trevor Murray was employed as a re-
search strategist at securities frm UBS, within the frm'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
1
See also, e.g., Motor Vehicle and Highway Safety Improvement Act of
2012, § 31307(b), 126 Stat. 766–769 (enacting 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 (enacting 15 U. S. C. § 2087(b)); Energy Policy
Act of 1992, § 2902(d), 106 Stat. 3123–3124 (amending Energy Reorganiza-
tion Act of 1974, 42 U. S. C. § 5801 et seq., by adding § 5851(b)(3)).
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29
Opinion of the Court
and Exchange Commission (SEC) regulations required him
to
certify that his reports were produced independently and
accurately refected 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 Murray
to “clear [his] research articles with the desk” before publish-
ing them. 1 App. in No. 20–4202 (CA2), p. 254.
Murray reported that conduct to his direct supervisor, Mi-
chael Schumacher, in December 2011 and again in January
2012, asserting that it was “unethical” and “illegal.” App.
28. 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).
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 “con-
stant 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 hav-
ing given Murray a very strong performance review just a
couple months earlier) Schumacher emailed his own supervi-
sor and recommended that Murray “be removed 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 would not have SEC certifcation responsibilities.
The trading desk declined to accept Murray as a transfer,
and UBS fred him in February 2012.
Murray then fled a complaint with the Department of
Labor alleging that his termination violated § 1514A of
Sarbanes-Oxley because he was fred in response to his inter-
nal reporting about fraud on shareholders. When the
agency did not issue a fnal decision on his complaint within
180 days, Murray fled an action in federal court.
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Y v. UBS SECURITIES, LLC
Opinion of the Court
Murray's claim went to trial. UBS moved for judgment
as
a matter of law, arguing, among other things, that Mur-
ray had “fai led to produce any ev idence that Schu-
macher 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 ele-
ments: (1) that he engaged in whistleblowing activity pro-
tected by Sarbanes-Oxley, (2) that UBS knew that he en-
gaged in the protected activity, (3) that he suffered an
adverse employment action (i. e., was fred), and (4) that his
“protected activity was a contributing 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 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] employ-
ment.” Id., at 130. 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.”
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 clarifcation 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 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.

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Opinion of the Court
The jury found that Murray had established his § 1514A
clai
m and that UBS had failed to prove, by clear and convinc-
ing evidence, that it would have fred Murray even if he had
not engaged in protected activity. (In that regard, UBS had
argued to the jury that market-wide diffculties and a $2-
billion loss on a UBS trading desk in London had required
the elimination of certain positions, including Murray's.)
The jury also issued an advisory verdict on damages, recom-
mending 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 addi-
tional $1.769 million in attorney's fees and costs. UBS ap-
pealed 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 identifed 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
identifed 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 of
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 iden-
tical 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 determined
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32 MURRA
Y v. UBS SECURITIES, LLC
Opinion of the Court
that “the district court's failure to instruct the jury on Mur-
ray'
s burden to prove UBS's retaliatory intent” was not
harmless—despite “circumstantial evidence at trial that
UBS terminated Murray in retaliation for whistleblowing,”
such as the close temporal proximity between Murray's whis-
tleblowing and termination and the fact that Schumacher
had given Murray a good performance evaluation 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 failing to instruct
the jury on Murray's burden to prove UBS's retaliatory in-
tent.” Id., at 262–263.
The Second Circuit's opinion requiring whistleblowers to
prove retaliatory intent placed that Circuit in direct confict
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 retalia-
tory 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 disagreement. 598
U. S. ––– (2023).
III
Section 1514A's text does not reference or include a “retal-
iatory 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 contribut-
ing factor in the unfavorable personnel action, he need not
also prove that his employer acted with “retaliatory 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
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Opinion of the Court
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 em-
ployee.” Brief for Respondents 27, n. 3. UBS's circular
defnition does not reveal anything about what “retaliatory
intent” means, however, and UBS itself equated retaliatory
intent with “animus” in its briefng below. See supra, at 30.
Thus, consistent with the Second Circuit's opinion, this Court
treats “retaliatory intent” as something akin to animus.
See also Brief for United States as Amicus Curiae 16 (sug-
gesting 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 intent” re-
quirement on whistleblower plaintiffs. As UBS acknowl-
edges, the Second Circuit's holding was “expressly predi-
cated” 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 employment be-
cause of ” the employee's protected whistleblowing activity.
§ 1514A(a). To start, the placement of the word “discrimi-
nate” in the section's catchall provision suggests that it is
meant to capture other adverse employment actions that are
not specifcally listed, drawing meaning from the terms “dis-
charge, demote, suspend, threaten, [and] harass” rather than
imbuing those terms with a new or different meaning. See,
e.g., Brogan v. United States, 522 U. S. 398, 403, n. 2 (1998)
(“[W]hen a general term follows a specifc one, the general
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34 MURRA
Y v. UBS SECURITIES, LLC
Opinion of the Court
term should be understood as a reference to subjects akin to
the
one with specifc enumeration”). Here, there is no dis-
pute 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, “dis-
criminate” in the catchall provision relates back to and char-
acterizes “discharge,” such that “to be actionable, discharge
must be a `manner' of discriminating.” Brief for Respond-
ents 11. Accepting this statutory construction argument
“for argument's sake,” as this Court did in Bostock v. Clay-
ton County, 590 U. S. 644, 657 (2020), the question is whether
the word “discriminate” inherently requires retaliatory in-
tent. It does not.
In Babb v. Wilkie, 589 U. S. 399 (2020), this Court ex-
plained that the “normal defnition” of “discrimination” is
“differential treatment.” Id., at 405 (quoting Jackson v.
Birmingham 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 “irrel-
evant” to a claim of discrimination under Title VII. Id., at
663; see also Automobile Workers v. Johnson Controls, Inc.,
499 U. S. 187, 199 (1991) (explaining that a prohibition on
discrimination “does not depend on why the employer dis-
criminates” or the presence of “malevolent motive”).
An animus-like “retaliatory intent” requirement is simply
absent from the defnition of the word “discriminate.”
When an employer treats someone worse—whether by fring
them, demoting them, or imposing some other unfavorable
change in the terms and conditions of employment—“be-
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Opinion of the Court
cause 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 report-
ing 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. Accepting
that the word “discriminate” is relevant to the intent inquiry,
the only intent that § 1514A requires is the intent to take
some adverse employment action against the whistleblowing
employee “because of ” his protected whistleblowing activity.
The statute is clear that whether an employer “discrimi-
nated” in that sense has to be resolved through the
contributing-factor burden-shifting framework that applies
to Sarbanes-Oxley whistleblower claims.
B
Statutory context confrms 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 “cau-
sation, not intent.” Brief for Respondents 11. Not so.
Burden-shifting frameworks have long provided a mecha-
nism for getting at intent in employment discrimination
cases, and the contributing-factor burden-shifting frame-
work 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 consideration
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36 MURRA
Y v. UBS SECURITIES, LLC
Opinion of the Court
of relevant evidence,” courts rely upon “a series of shifting
e
videntiary burdens that are `intended progressively to
sharpen the inquiry into the elusive factual question of inten-
tional 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 discriminatory intent is diffcult to
prove, and because employers “contro[l] most of the cards,”
135 Cong. Rec., at 5033, burden shifting plays the neces-
sary role of “forcing the defendant to come forward with
some response” to the employee's circumstantial evidence,
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 pic-
ture before it and can make the ultimate determination as
to whether the employer intentionally treated the employee
differently, and worse, because of the employee's protected
trait or activity.
The burden-shifting framework provides a means of get-
ting at intent, and Congress here has decided that the plain-
tiff 's burden on intent is simply to show that the protected
activity was a “contributing factor in the unfavorable person-
nel 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 “demon-
strat[e], by clear and convincing evidence, that the employer
would have taken the same unfavorable personnel action
in the absence of that behavior.” 49 U. S. C. § 42121(b)
(2)(B)(ii). While many statutes dealing with employment
discrimination apply a higher bar, requiring the plaintiff to
show that his protected activity was a motivating or substan-
tial factor in the adverse action, see, e.g., EEOC v. Aber-
crombie & 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 refects a
judgment that “ `personnel actions against employees should
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as: 601 U. S. 23 (2024)
37
Opinion of the Court
quite simply not be based on protected [whistleblowing] ac-
tiv
ities' ”—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) (discussi ng WPA); brackets
omitted).
While the Second Circuit attempted to make “retaliatory
intent” a requirement for satisfaction 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 Web-
ster's New World College Dictionary 317 (4th ed. 1999) (de-
fning “contribute,” in the relevant sense, to mean “to have
a share in bringing about (a result); be partly responsible
for”); id., at 508 (defning “factor” as “any of the circum-
stances, conditions, etc. that bring about a result”). Show-
ing that an employer acted with retaliatory animus is one
way of proving that the protected activity was a contributing
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 factor
in his fring 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
2
UBS also asks this Court to affrm on an alternative basis. UBS
claims that the Second Circuit held that the initial jury instruction on the
contributing-factor element, which allowed the jury to fnd that Murray'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 jury's verdict. Brief for Respondents
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38 MURRA
Y v. UBS SECURITIES, LLC
Opinion of the Court
C
UBS
and its amici argue that, without a retaliatory intent
requirement, innocent employers will face liability for legiti-
mate, nonretaliatory personnel decisions. See Brief for Re-
spondents 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 posit-
ion. UBS asserts that “[u]nder petitioner's view, the em-
ployer would be liable for retaliation, despite the ab-
sence of any intent to retaliate.” Brief for 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
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 whistle-
blowing disclosures.' ” Watson v. Department of Justice, 64
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 this initial instruction, but this Court
did not grant certiorari to address that issue.

Cite
as: 601 U. S. 23 (2024)
39
Alito, J., concurring
F. 3d 1524, 1528 (1995). In that case, the correct inquiry was
whether
the employer would have taken the same action if
it had learned of the contents of the employee's protected
disclosure through other means. Ibid. In UBS's hypothet-
ical, the relevant inquiry would be whether the employer still
would have fred 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 contexts
where the health, safety, or well-being of the public may well
depend on whistleblowers feeling empowered to come for-
ward. This Court cannot 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 contribut-
ing factor in the unfavorable personnel action alleged in the
complaint,” 49 U. S. C. § 42121(b)(2)(B)(i), but he is not re-
quired to make some further showing that his employer
acted with “retaliatory intent.” 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 for fur-
ther proceedings consistent with this opinion.
It is so ordered.
Justice Alito, with whom Justice Barrett joins,
concurring.
I agree with the Court that a plaintiff suing under the
whistleblower-protection provision of the Sarbanes-Oxley
Act need not prove that his or her employer acted with “ani-
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40 MURRA
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Alito, J., concurring
mus,” a term that denotes “prejudic[e]” or “ill will.” *
Merr
iam-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, and
we have no ground for adding it in as an additional, non-
statutory requirement. I write separately to explain in sim-
ple terms how the statute works and to reiterate that our
rejection of an “animus” requirement does not read intent
out of the statute. Rather, as the Court confrms, a plaintiff
must still show intent to discriminate. Ante, at 34.
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 whistle-
blowing. 18 U. S. C. § 1514A(a). The phrase “in any other
manner discriminate” suggests that the adverse action—
here, petitioner's discharge—must 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
plai nti ff must prove that the employer “ `i ntenti ona l ly
treat[ed the plaintiff] worse because of ' ” the protected con-
duct. Ante, at 34 (quoting Bostock v. Clayton County, 590
U. S. 644, 658 (2020)).
To structure the presentation of proof in a case brought
under the whistleblower-protection provision, Sarbanes-
Oxley 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” discriminatory
*The Court uses the term “retaliatory intent” as a synonym for “ani-
mus.” See ante, at 33. All references in the opinion to “retaliatory in-
tent” must be understood to carry that meaning.
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as: 601 U. S. 23 (2024)
41
Alito, J., concurring
intent. Ante, at 35. Under this framework, the plaintiff
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 decision-
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 conduct.
The plaintiff need not prove that the protected conduct was
the only reason or even that it was a principal reason for the
adverse decision. Showing that it “help[ed] to cause or
bring about” that decision is enough. Concise Oxford Dic-
tionary 310 (10th ed. 1999); Webster's Third New Inter-
national Dictionary 496 (1993) (defning “contributing ” 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 causation.
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 the com-
plaint. § 42121(b)(2)(B)(iv). In other words, it must show
that the plaintiff 's protected conduct did not cause the chal-
lenged employment decision. And if the employer satisfes
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.

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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None