The Equal Employment Opportunity Commission (EEOC) has released its 2015 Enforcement and Litigation Data, and one of the items that stands out is that the greatest number of charges filed are in the category of retaliation. Continuing a trend from prior years, the data show that almost half -- 44.5 percent -- of the charges filed were for retaliation. This is an important fact: The lion's share of claimed threats to equal opportunity are not from discrimination itself, but from the perception of adverse treatment of those who report on law and policy violations, including discrimination. That raises a question that is critical in today's employment law contexts: How should companies treat whistleblowers? A rock solid answer is, "Don't retaliate." Add to that, "And be very clear about any actions that could be perceived as retaliatory." But there is more nuance to it, and that nuance also applies to the issue of how whistleblowers should be assessed and addressed in litigation. Both sides need to resist the lure of an oversimplified view of the whistleblower who, to the plaintiff, might be a noble self-sacrificing hero, and to the defense might be a divisive malcontent seeking excuses for a poor employment record.
There is probably more to it than that. A recent research article provides some insight into that nuance. Entitled, "The Psychology of Whistleblowing" (Dungan, Waytz & Young, 2015), the article comes from a group of psychology and management researchers from Boston College and Northwestern University. "From one perspective," they write, "whistleblowing is the ultimate act of justice, serving to right a wrong. From another perspective, whistleblowing is the ultimate breach, a grave betrayal." Relying on moral foundations theory, they conducted five studies showing that whistleblowing represents a tradeoff in two fundamental moral values: fairness and loyalty. Individuals and situations emphasizing fairness cause whistleblowing to be more common and more supported, and individuals and situations emphasizing loyalty cause whistleblowing to be less common and less supported. So the critical determinant in whether the whistleblower emerges as a hero or a snitch depends on whether the narrative frame prioritizes loyalty or fairness. In this post, I will take a look at some implications of that tradeoff for companies, for plaintiffs, and for defendants.
For Companies: Cultivate a Culture of Criticism
My focus in this blog is on litigation, but sometimes the best litigation strategy is litigation avoidance. Companies already understand the need for policies that don't just prohibit discrimination, but also prohibit the adverse treatment of whistleblowers. But it is not enough to just allow whistleblowing, or even to inform workers of that protection. Instead, the researchers report that it comes down to a need for a culture that supports internal criticism across the spectrum of matters large and small. They share research showing that whistleblowing can either increase cooperation and reduce selfishness within the group, or it can increase dissent and denigration, reducing group harmony. The difference comes down to group culture. I have written previously that fighting within your team leads to better decisions (and that applies to law firms and trial teams as well). But for organizations looking to reduce the threat of equal opportunity lawsuits, it means creating a culture that welcomes criticism. The authors suggest, "To motivate a broader swath of individuals toward whistleblowing, organizations might focus on building the kind of community that values constructive dissent while maintaining group loyalty."
For Plaintiffs: Address the Fairness-Loyalty Tradeoff
Employment plaintiffs usually understand that they cannot afford to take the credibility of a whistleblower at face value. The same dualism that suggests that a whistleblower could be either a noble hero or a discontented traitor exists on the jury as well. In order to maintain the image of their client, plaintiffs need to play up the "fairness" theme and play down the "loyalty" dimension. Or alternately, your narrative can frame the whistleblower's actions as a larger kind of loyalty: A fealty to the highest ideals of the company, not necessarily to its current leadership.
For Defendants: Make It "Less Noble, More Normal"
Defendants might benefit from complex feelings toward the whistleblower. At the same time, generally the last thing a defendant would want to do is to explicitly play the loyalty card. Appearing to fault the employee for breaking ranks makes the company seem like a criminal enterprise. Instead, seek to normalize the act of whistleblowing. If the company has embraced the advice I share above, then they should be able to point to several features of the company's policies and culture that don't just allow whistleblowing, but positively encourage it. The message should be that this is not a uniquely noble act on the plaintiff's part, but is instead something that we expect of all our employees. And the fact that a claim is made means that we need to take it seriously, but it doesn't mean the claim is correct.
Ultimately, the complexity of our views of whistleblowers is a reminder that court cases are not just about claims, evidence, and the law. They're also about a story, and how each of the parties fit within that story's moral frame.