by Ken Broda-Bahm and Brad Cave
With retaliation claims again topping the list of charges filed most frequently with the Equal Employment Opportunity Commission (EEOC) and whistleblower claims on the rise, employers can learn a great deal by better understanding the psychology of a whistleblower. 
Retaliation is all about perception
In its 2015 enforcement and litigation data, the EEOC revealed that most of the charges filed with the agency nationwide are for retaliation. Continuing a trend from previous years, retaliation claims amounted to almost half of the charges filed with the EEOC—44.5 percent—in fiscal year (FY) 2015.
Whistleblower cases also continue to rise. The Occupational Safety and Health Administration (OSHA) has whistleblower authority to protect workers from retaliation under 22 federal laws, including for reports of bank and securities fraud under the Sarbanes-Oxley Act (SOX) and perceived violations of consumer protection laws under the Consumer Financial Protection Act (CFPA) and the Consumer Product Safety Improvement Act (CPSIA). In FY 2015, OSHA received almost 3,300 whistleblower complaints—an increase of almost 1,000 cases from just five years earlier.
The fact that retaliation charges are more prevalent than any other type of discrimination charge illuminates an interesting phenomenon: The lion’s share of claims under the discrimination statutes are not due to discrimination itself but to the perception of adverse treatment of employees who report law and policy violations, including discrimination. That raises a critical question in today’s employment law context: How should companies treat whistleblowers?
A rock solid answer is, “Don’t retaliate.” In addition, be very clear about any actions that could be perceived as retaliatory. But the issue is more nuanced with respect to how whistleblowers should be assessed and addressed in litigation. One thing is clear: You must resist the oversimplified view of the whistleblower as a divisive malcontent seeking excuses for a poor employment record. While most whistleblowers are not the noble self-sacrificing heroes they may perceive themselves to be, you should keep in mind that regulatory agencies and juries aren’t very likely to question a whistleblower’s motives.
The psychology of whistleblowing
A recent research article titled “The Psychology of Whistleblowing” provides some insight into the nuances of dealing with whistleblowers. James Dungan, Adam Waytz, and Liane Young, a group of psychology and management researchers from Boston College and Northwestern University, write, “From one perspective, 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, the researchers conducted five studies showing that whistleblowing represents a trade-off between 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.
One of the studies conducted by the researchers began by using different essays to induce individuals to endorse values of fairness or values of loyalty. Then, the participants were presented with the opportunity to report a coworker in an online marketplace who shirked his work duties. Participants who were primed to embrace fairness blew the whistle on the coworker more often than those who were primed to embrace loyalty. The trade-off between values of fairness and loyalty appeared to drive the decision about whether or not to be a whistleblower.
Personal factors that contribute to whistleblowing
Relying on numerous other studies, the researchers report that certain personality traits and demographic factors contribute to more incidents of blowing the whistle. Factors that correlate with higher rates of whistleblowing include:
- Having a longer tenure of employment at the company;
- Receiving higher pay;
- Being highly educated;
- Being male;
- Being an extrovert; and
- Having a proactive personality.
The researchers conclude that people with more occupational power and whose personality traits support nonconformity are more likely to dissent or blow the whistle. They suggest that the reason for this may be that such individuals face a lower threat of punishment for violating group cohesion.
Situational, cultural factors that may predict whistleblowing
The researchers opine that in addition to personal traits that may affect whether an employee becomes a whistleblower, situational and cultural factors play a role. For example, predictors of whether a worker will decide to blow the whistle may be determined by the level of organizational support and encouragement for whistleblowing and whether the mechanisms and protections for reporting wrongdoing are well-known by employees.
In addition, differences in cultural norms may affect the likelihood of whistleblowing. For instance, people from many Asian cultures view whistleblowing less favorably than individuals from the United States.
Cultivate a culture of criticism that leads to loyalty
Employers already understand the need for policies that don’t merely prohibit discrimination but also prohibit retaliation and the adverse treatment of whistleblowers. But it isn’t enough to just inform workers that they are protected from retaliation. Instead, the researchers encourage companies to create a culture that supports internal criticism across the spectrum of issues, large and small. They share research showing that whistleblowing can either increase cooperation and reduce selfishness within the group or increase dissent and denigration, reducing group harmony. The difference comes down to group culture.
Organizations looking to reduce the threat of retaliation lawsuits should consider creating a culture that welcomes criticism. The thought is that if you encourage employees to blow the whistle internally and dissent is viewed as a good thing that’s valued by your company (i.e., it makes the company better), loyalty is enhanced, and whistleblowing to an outside entity such as the EEOC or OSHA becomes less likely.
Part of that effort should include strong, well-publicized policies that encourage internal reporting of potential violations or wrongdoing. But it should also include training supervisors on how best to welcome criticism and avoid retaliation toward subordinates who speak up, in addition to conveying other messages that highlight the value of internal constructive criticism.
Make whistleblowing ‘less noble, more normal’
If an employee’s whistleblower or retaliation claim heads to court, you might benefit from evaluating your complex feelings toward the whistleblower. You may not want to explicitly play the loyalty card because blaming the employee for breaking ranks may seem to reinforce his argument that your company had a retaliatory motive. Instead, seek to normalize the act of whistleblowing.
If your company has embraced a culture of criticism, you should be able to point to several features of your policies and culture that don’t just allow whistleblowing but positively encourage it. The ability to prove that such a culture exists permits you to suggest that whistleblowing isn’t a uniquely noble act on the employee’s part but is instead something you expect of all your employees. The fact that a claim was made means that you need to take it seriously, but it doesn’t mean that you retaliated against the employee.
Ultimately, the complexity of our views of whistleblowers is a reminder that employment decisions and court cases are not just about claims, evidence, and the law. They’re also about perceptions and a story and how each of the parties fits within that story’s moral frame.
Brad Cave is an attorney with Holland & Hart LLP, practicing in the firm’s Cheyenne, Wyoming, office. He may be contacted at bcave@hollandhart.com.
Ken Broda-Bahm is a senior consultant at Persuasion Strategies. He may be contacted at kbrodabahm@persuasionstrategies.com.