Myths and Masks of Legislative Policy for Whistleblower Protection
Updated: Sep 9, 2020
Today’s guest post is by Wendy Addison, Founder and Owner of SpeakOut SpeakUp Ltd.
What has become clear is that no matter which country you reside in, which industry you work in, whether you are male or female, legislative protection for whistleblowers is falling short on realising its intentions.
In Jordan, on October 15th, while training the Jordanian anti-corruption commission on the protection of whistleblowers, I learned that protecting whistleblowers in Jordan can result in sweeping, grand gestures involving 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, I was informed that evidence would be gathered to prove a causal relationship between the whistleblowing and the retaliation. ‘How would you gather that evidence?’ I asked the anti-corruption team. ‘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.
Furthermore, concern was raised that if the anti-corruption team were to offer all informants protection, they would be swamped by too many applications. This lead to the much often debated area of filtering and resources.
LEGISLATIVE PROTECTION FOR WHISTLEBLOWERS
Research conducted by Nancy M. Modesitt reveals 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, or resigning under duress.
The book, Whistleblowing and Mental health: A New Weapon for Retaliation? co-authored by Dr Kate Kenny and Professor Marianna Fotaki, which will be available electronically in November 2015, collates current research and outcomes highlighting that there is still much work to do.
It is true to say that retaliation comes in many different forms and that retaliation is most difficult to prove and measure. Watch a 1.43 min video on nuanced retaliation here.
It is not only corporations that react strongly to whistleblowers. Regulators often fail to react positively to whistleblowers due 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 here. This is correct – read my blog on understanding how rebel resentment, partnered with our own propensity to reject those who speak out, results in the reality that, “No one likes to be told that she may have violated a law”, as US Attorney Stephen Kohn suggests (here). Additionally, evidence confirms that corporate culture often instils the fear of reporting improper or illegal behaviour.
Could one of the reasons that no one appears to have spoken out at Volkswagen in the face of the recent emissions scandal be due to the policies and process that lacked any realistic connection to human behaviour, as discussed in our prior blog here.
Whistleblowers often find that they are often unable to provide sufficient evidence to prove that their whistleblowing was a contributing factor in retaliation.
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) he/she engaged in protected behaviour, such as reporting unlawful activity; (2) he/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.
The Inability to prove causation is the single largest reason that whistleblowers lose their case
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. 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 (BITs), aka ‘Nudge units’ are being engaged by governments in order to create new standards of ‘best practices’ by dovetailing policy with social sciences.
Watch here this 1.48 video of Varun Gauri, Senior Economist, Development Research Group of the World Bank making this salient.
The OECDs’ November 2015 report (here) on behavioural informed approaches toward regulatory design and enforcement communicates that there are “gains from the use of behavioural science in the design of policy themselves that could be integrated into existing regulatory tools. Behavioural science has great potential in defining the problems that governments may be seeking to address in the first instance.”
In line with the above I would like to use this blog to nudge policy and regulatory departments to engage with their country-specific behavioural insights teams/nudge units to partner for best practice in whistleblower protection. See 1-minute video on International BIT teams including what they do (here).
Additional Links: The Special Rapporteur’s report to the UN General Assembly in 2015 on the Protection of Sources and Whistleblowers (here)
Unanswered Questions about Dodd-Frank Retaliation Claims (here)