Myths And Masks Of Legislative Protection For Whistleblowers

Myths and Masks of Legislative Policy for Whistleblower Protection
and how behavioural insights can assist in creating new standards of best practice.

Over the last couple of weeks I participated in two events at opposite ends of the world, paralleled in focusing on whistleblowing and how to protect those who speak out. What became clear is that no matter which country you reside in, which industry you work in, whether male or female, which year a person spoke out and from which culture you originate, legislative protection for whistleblowers is falling short on realising its intentions.

In Jordan I learned that protecting whistleblowers can often result in a sweeping, grand gesture which may involve security agents who provide the informant with a new identity, place of work and relocation.
When challenged on how protection would work against the more common, nuanced forms of retaliation we were informed that evidence would be gathered to prove a causal relationship between the whistleblowing and the retaliation. ‘How would you gather that evidence?’ we asked. ‘We would simply ask the manager why the whistleblower was being victimised”, was the reply. Very trusting, however like all appellants, trust is tied to our ability to know the true intentions of those who are asked to bear witness.

Research conducted by Nancy M. Modesitt revealed that even though there is legislative support for greater whistleblower protections, it does not appear that employers share that sentiment. 82% of employee whistleblowers reported retaliation in the form of being fired, suffering significantly altered employment responsibilities and resigning under duress.
C. Fred Alford’s book, Whistleblowers: Broken Lives and Organizational Power, http://www.amazon.co.uk/Whistleblowers-Broken-Lives-Organizational-Power/dp/0801487803 details some of the consequences that arise in whistleblowers’ personal lives. The book begins with a whistleblower’s description of how his life changed after reporting misconduct: “I didn’t just lose my job. I lost my house, and then I lost my family.” Similarly, when Roger Boisjoly exposed flaws in the decision to launch the space shuttle Challenger, not only did his career “end up in the toilet big time,” he also suffered adverse health consequences, including post-traumatic stress disorder.

More recently a book Whistleblowing and mental health: A new weapon for retaliation? which will be available electronically from November 2015 collates current research and outcomes by Fotaki, M., Kenny, K. and Scriver, S. (2015) in Lewis, D & Vandekerckhove, W. (eds) Developments in Whistleblowing Research 2015, London: International Whistleblowing Research Network. ISBN: 978-0-9571384-1-4 Both books make salient that there is still much work to do.

It is true to say that retaliation comes in many different forms and it is the retaliation that is most difficult to evidence and measure that result in whistleblowers and those who have chosen not to ‘go along with the system’ finding themselves unprotected and challenged to prove causation. Watch 1.43 min video on nuanced retaliation.

It is not only corporations that react strongly to whistleblowers. Regulators often fail to react positively to whistleblowers due to their bowing to political pressure. Why do so many employers and those with oversight authority react negatively to whistleblowers? One leading plaintiffs’ attorney in this area of the law believes that employers’ negative responses are due to simple human nature. This is correct – read my blog on understanding rebel resentment https://speakoutspeakup.org/2015/05/26/understanding-rebel-resentment-it-all-begins-with-you/Partnered with our own propensity to reject those who speak out is the reality that, “No one likes to be told that she may have violated a law”, as Stephen Kohn suggests. Additionally, evidence confirms that companies’ corporate culture instils the fear of reporting improper or illegal behaviour.

In line with the above graph, whistleblowers find that they are often unable to provide sufficient evidence to prove that their whistleblowing was a contributing factor in the retaliation they receive, including dismissal. Moberly, Unfulfilled Expectations, supra note 1,120-124. This suggests that whistleblowers often do not fare in the current legal system because the system is focused on a very narrow statutory right and on federal administrative decision makers. See Moberly, Ten Years Later, supra note 1, at 33

The prima facie case, which is the predominant method of proving retaliation for engaging in whistleblowing, is typically articulated as follows. The plaintiff must establish that: (1) she engaged in protected behaviour, such as reporting unlawful activity; (2) she was discriminated against; and (3) there is a causal connection between the protected activity and the discrimination. Of these three requirements, the causal connection was the one that produced the most difficulty for whistleblowing plaintiffs. Even if the plaintiff produces sufficient evidence of causation to establish the prima facie case, causation must again be revisited, and once again it causes evidentiary problems for the plaintiff. If the plaintiff establishes the prima facie case, the burden of proof shifts, just as in employment discrimination cases, to the defendant to articulate a legitimate reason for taking action against the plaintiff. (See, e.g., Paras, 2012 WL 629997, at *6.)

Once the employer has articulated what it purports as its legitimate reason for taking the action, the plaintiff can still prevail if she can establish that the stated reason is a pretext. This implicates causation because the case then revolves around whether the employee was fired because of whistleblowing or for some other, non-protected reason. The burden of proving causation, whether as a part of the prima facie case or by establishing pretext, becomes a significant problem for plaintiffs. Out of thirty-four whistleblower cases studied, fifteen involved analyses on the cause of the adverse action taken, making it the predominant legal basis for deciding whistleblowing cases in this example.

The Inability to prove causation is the single largest reason that whistleblowers lose their case (See Moberly, Unfulfilled Expectations,supra note 1, at 124–28.) with courts deciding that the bulk of summary judgement motions against the plaintiffs were based on the court’s belief that causation cannot be established as a matter of law.

A common theme that might account for courts’ apparent hostility to employees in whistleblower cases is that courts dislike having to delve into the minutia of the reasons for an employee’s termination.
Directly addressing the issue of pretext, one management attorney put it baldly, stating, “Plaintiff may not simply question, or second guess, the soundness of [the employer’s] business judgment to show pretext. . .. ‘A fact-finder need not, and indeed should not, evaluate whether a defendant’s stated purpose is unwise or unreasonable.’” (Defendant-Appellee’s Brief on Appeal, King v. Chrysler Grp. LLC, No. 301246, 2012 WL) The courts dislike of playing the role of a super-human resources department puts whistleblowers in a position akin to employment discrimination plaintiffs.

Policy Partnered with insights from Human Behaviour

Is it merely because whistleblowers are still seen as snitches, despite the recently positive media portrayals? Is it because whistleblowing plaintiffs have personal characteristics that make them less likeable to judges? These questions are important because even if the legal standards are brought into alignment with causation in other contexts, if judges are predisposed against whistleblowers, a purely legal correction may not solve the problem.

Indeed, any legislative policy is wholly dependent on human behaviours and attitudes to be effective. Without the engagement of people, policies and processes remain mere scaffolding.

Personally I would like to see the shaping of whistleblowing legislative policy partnered with our inbuilt responses to the world. Knowledge about human behaviour can be translated into viable interventions to help solve many issues. Behavioural Insights teams worldwide are being engaged by governments in order to create new standards of ‘best practice’ by dovetailing policy with social sciences.

Watch 1.48 video of Varun Gauri, Senior Economist, Development Research Group of the World Bank making this salient

https://vimeo.com/143515960

As this OECD article of Oct 2015 communicates:

Source: http://oecdinsights.org/2015/10/13/the-time-travelling-policy-maker/

Pages 53-54 ‘Behavioural informed approaches toward regulatory design and enforcement. Read more here: http://www.oecd.org/gov/regulatory-policy/launch-of-regulatory-policy-outlook-2015.htm

In line with the above I would like to use this blog to nudge the Department of Business Innovation and Skills, the UK agency for policy development, to engage with the Behavioural Insights team, http://www.behaviouralinsights.co.uk/, created by David Cameron and partnered with the Cabinet Office to partner for best practice in whistleblower protection.

Helpful Links: The Special Rapporteur’s report to the UN General Assembly in 2015 on the Protection of Sources and Whistleblowers

http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/ProtectionOfSources.aspx

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