Ehstoday 1067 Whistleblower

Defining Employer Retaliation in Whistleblower Cases

Jan. 28, 2013
An employee who complains of discrimination at work is protected from retaliation from his or her employer. But if that employer reveals the worker’s name and actions in a widely distributed email, does that count as retaliation? Indiana University researchers consider this issue through new research.

In the new study, "Retaliatory Disclosure: When Identifying the Complainant Is an Adverse Action," researchers from the Indiana University (IU) Kelley School of Business set out to determine when public disclosure of a whistleblower's identity, such as through an email, may be classified as retaliation.

"When someone makes a complaint of discrimination that's covered by federal anti-discrimination laws, you're automatically cloaked in protection from retaliatory actions that could come in response," said Jamie Prenkert, associate professor of business law at the IU Kelley School of Business Bloomington and the study's lead author. "But what can be retaliatory is a broad-ranging continuum of actions that the courts don't specifically define."

Prenkert, who also is a Weimer Faculty Fellow, noted that simply the possibility of being publicly identified as a complainant is enough to discourage someone from becoming a whistleblower. But Title VII of the Civil Rights Act of 1964, existing case law and EEOC regulatory documents provide little guidance on the use of email and similar, immediate forms of communication.

The assurance of anonymity, however, is a key reason employees may be willing to speak up in the first place.

"There's a lot of research about whistle-blowers – why people blow the whistle, what influences them – and anonymity is one reason to decide to blow the whistle," said Julie Manning Magid, associate professor of business law at the IU Kelley School of Business Indianapolis.

The Belmont Abbey College Case

At the heart of their paper was a 2007 case involving Belmont Abbey College, a Catholic institution in North Carolina, and eight of its faculty members. When Belmont Abbey College chose to exclude contraceptives from its employee health care coverage, the faculty members filed a complaint with the U.S. Equal Employment Opportunity Commission, claiming religious and gender discrimination.

The college's president reacted by sending a mass email to faculty, students and staff detailing the complaint and identifying the faculty members, which resulted in an additional EEOC complaint against the college of retaliation.

In July 2009, the EEOC found reasonable cause to believe Belmont Abbey had discriminated against the charging parties based on gender but found "no cause" supporting the religious discrimination charge. Separately, the EEOC indicated that the president's email constituted cause to find retaliation and was "intended to produce a 'chilling effect' on the campus and to create an environment where faculty and staff would hesitate before filing complaints against the college."

"Belmont Abbey did not discriminate against its employees based on religion, as the EEOC determined, despite outrage among many that might suggest otherwise," the professors wrote. "However, in publicly disclosing the names of the eight faculty members who sought to utilize the process established for asserting employee rights against discrimination, the college may have sought to discourage other employees from taking similar actions.”

Defining Retaliation

While public disclosures can discourage employees from exercising rights established under Title VII, the authors also noted the need for a balance that includes the interests of employers in appropriate disclosures. They recommended a standard for retaliatory disclosure that considers disclosure an adverse action unless a 'need to know' defense exists.

The authors noted that disclosure of very personal information, such as an employee's allegation of sexual harassment, may be retaliatory, as well as when the disclosure will directly lead to threats and punitive actions from co-workers or the community. An employee's vulnerability within an organization also should be a factor.

"We've adopted what we hope to be a balanced approach in order to understand the employer's interest in furthering their ability for communication, transparency and work-related issues while recognizing an employee's legal rights,” Magid said.

The study will appear in the North Carolina Law Review. Allison Fetter-Harrott, an assistant professor of political science at Franklin College, also was a study co-author.

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