How does a Potential Whistleblower Prove Retaliation?
The burden of proof under the McCaskill amendment is quite favorable towards employees, and employees need only demonstrate that their disclosure was a “contributing factor” to their reprisal. The Amendment allows for the use of circumstantial evidence, including evidence that the official behind the reprisal knew about the employee’s disclosure or evidence that the reprisal occurred within such a timeframe after the disclosure that would lead a “reasonable person” to conclude that the disclosure was a “contributing factor” in the reprisal. In contrast, the employer has a higher burden of proof to avoid liability and must demonstrate “clear and convincing” evidence that they would have taken the same alleged reprisal action even if the employee had not made the disclosure. E. What Are the Available Remedies under the McCaskill amendment? If a potential whistleblower feels s/he has been retaliated against by their employer for making a disclosure protected under the McCaskill amendment,
