Four years of Lawson v. PPG

In January 2022 the Supreme Court told litigants to stop importing the federal McDonnell Douglas test into whistleblower cases. The contributing-factor framework that replaced it has changed who survives summary judgment — unevenly, and in ways worth understanding before you plead.

1 · What the court held

The question reached the court sideways: the Ninth Circuit, unsure which framework California law supplied, certified it. For decades, many courts had analyzed Labor Code section 1102.5 retaliation claims under McDonnell Douglas — the federal three-step in which the employer need only articulate a legitimate reason and the employee must then prove that reason pretextual. The problem was that the Legislature had answered the question in 2003, in section 1102.6, and the answer looked nothing like McDonnell Douglas.¹

In an opinion by Justice Kruger, the court answered the certified question directly. The holding is worth reading in the court’s own words:

“Section 1102.6 provides the governing framework for the presentation and evaluation of whistleblower retaliation claims brought under section 1102.5. First, it places the burden on the plaintiff to establish, by a preponderance of the evidence, that retaliation for an employee’s protected activities was a contributing factor in a contested employment action. The plaintiff need not satisfy McDonnell Douglas in order to discharge this burden. Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.”

— Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718 (Kruger, J.)

Two burdens, two standards of proof, and neither of them is McDonnell Douglas. That is the whole case — and it is enough to reorganize how these claims are litigated.

The case in brief. Court: Supreme Court of California, answering a question certified by the Ninth Circuit. Decided: January 27, 2022 · 12 Cal.5th 703. The facts: a territory manager reported being directed to “mistint” slow-selling paint so his employer could avoid buying it back — then was fired, formally for performance. Held: Labor Code §1102.6 — not McDonnell Douglas — governs §1102.5 retaliation claims.

2 · Why it matters most at summary judgment

PPG had a fallback position: even if section 1102.6 governs at trial, McDonnell Douglas should still control at summary judgment. The court rejected the “bifurcated approach” outright — nothing in the statute supports one standard for trial and another for dispositive motions. The consequence is structural. An employer moving for summary judgment must now show that no reasonable jury could find retaliation was even a contributing factor — or must effectively prove its same-decision defense to a clear-and-convincing standard, on paper, as the moving party. Both are difficult positions from which to win a motion.

That is the quiet redistribution Lawson worked: more whistleblower cases reach juries, and the settlement conversation happens in the shadow of that fact.

3 · Four years in the trial courts

The framework is settled; the practice is not. Oppositions still arrive built on McDonnell Douglas, and briefing habits formed over twenty years die slowly — the older test is still recited, sometimes by courts. Plaintiffs who plead section 1102.6 explicitly, and put Lawson in front of the court early, get the benefit of the framework. Those who plead retaliation generically often find the parties litigating the wrong test until someone corrects the record.

The other lesson of four years: “contributing factor” is a lower bar, not a free pass. Courts still want structure — the decision-maker’s knowledge, timing, a stated reason that shifts or deviates from procedure. And the defense bar has adapted, attacking the protected-activity element instead of causation. On that front the law has moved the plaintiff’s way too: in 2023 the court held that a “disclosure” is protected even when the recipient already knew the information.²

4 · What it did not change

You still need the elements: a protected disclosure, an adverse action, and evidence connecting the two. FEHA retaliation claims run on their own track — Lawson does not touch them, and a case pleading both statutes must brief both frameworks and know which one wins which motion. And no framework rescues a thin record. Lawson changed who must prove what, and how convincingly. It did not change the fact that the proof itself is built — document by document — long before anyone cites a burden of proof.

5 · How I plead it

The framework goes into the complaint by name. The same-decision rebuttal file starts on day one — comparators, timing, every deviation from the employer’s own procedures — because clear-and-convincing is the employer’s burden, and the point is to make it feel that way. Where the facts support both a section 1102.5 claim and a FEHA claim, both are pleaded and the motions sequenced deliberately. None of this is exotic. It is what the statute has said since 2003; Lawson simply made ignoring it impossible.

Notes

1. Lab. Code §1102.6, enacted 2003: the employer’s same-decision defense must be proved “by clear and convincing evidence.”
2. People ex rel. Garcia-Brower v. Kolla’s, Inc. (2023) 14 Cal.5th 719.

Related writing: How California’s retaliation framework actually works · If you signed an arbitration agreement

This article states California law as of its revision date and is analysis, not legal advice; quotations are from the published opinion. Reading this site does not create an attorney-client relationship. Attorney advertising.