Mediating in a Changing Landscape: Whistleblower and Retaliation Claims

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Whistleblower and retaliation claims are on the rise. Retaliation claims now comprise 41% of the more than 93,000 discrimination charges filed in 2013, according to a February report from the U.S. Equal Employment Opportunity Commission (EEOC). This is an increase of 28% over 10 years. At the same time, particularly since the enactment of Dodd-Frank in 2010, the number and types of whistleblower claims alleging corporate misconduct, sometimes coupled with discrimination claims, also has proliferated. Dodd-Frank gave claimants the ability to go directly to court, bypassing the administrative claims route, and to seek both enhanced recoveries and rewards. Federal whistleblower law also is shifting, as seen in a series of conflicting lower court rulings and the recent U.S. Supreme Court ruling in Lawson v. FMR LLC. All of this makes litigating—and mediating—whistleblower retaliation claims a significant challenge.

There has been so much new law that by the time a case gets to mediation, the landscape may have changed again. This places a premium on updated legal research, awareness of evidence issues and careful consideration of likely future developments. Both mediators and counsel should be prepared to have a more detailed discussion of the law than might be expected in a discrimination case.

Originally published in Law.com on June 10, 2014.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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