Causation in Whistleblowing Claims

Nancy M. Modesitt *

Whistleblowing cases have continued to increase in number in recent years as state and federal legislatures have added protections for employees who disclose illegal or wrongful activity by their employers.1 But even as the number of cases continues to climb, cohesive and coherent doctrines applicable in whistleblowing litigation have failed to emerge. A significant reason for this is that much of whistleblower protection is statutory in nature, and federal statutes vary greatly from state statutes, even as state statutes differ. A second reason is that courts have drawn upon doctrines developed under Title VII of the Civil Rights Act of 1964 in deciding whistleblowing cases, and Supreme Court decisions as well as statutory amendments have frequently altered legal standards in these cases. And a third reason is that there are overlapping common law and statutory protections, which result in the potential for different whistleblowing doctrines to develop, even within a single state.

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*Associate Professor of Law, University of Baltimore School of Law. Many thanks to Richard Moberly, Jennifer Pacella, and Anuj Desai for their thoughtful suggestions and comments. I deeply appreciate the efforts of my research assistants, Jacquelyn LaHecka and Rafiq Gharbi, as well as the continued support of the law school that made this article possible.