From one perspective, whistleblowing is an act of justice by a self-sacrificing hero, says Dr. Ken Broda‐Bahm; but from the other perspective, it’s the ultimate betrayal by a divisive malcontent. Once you understand that, Broda-Bahm adds, you can move your culture to a place where whistleblowers are much less of a threat.
Broda-Bahm, Senior Litigation Consultant at Persuasion Strategies, offered his tips at BLR’s Advanced Employment Issues Symposium in Las Vegas. He was joined by attorney Bradley Cave, a partner at Holland & Hart, LLP in Denver, Colorado.
Legal Elements of a Retaliation Claim
Retaliation occurs when an employer takes a materially adverse action against an employee because of protected activity, says Cave. The applicant or employee must have had a reasonable belief that conduct was unlawful when reported. In other words, says Cave, the complainer does not have to be right about complaint!
Protected Activities
There are two primary types of protected activity: participation and opposition, Cave notes:
Participation
- Filing a charge or internal complaint
- Answering questions in an investigation
- Testifying in a proceeding
Opposition
- Complaining about discriminatory or harassing conduct
- Refusing to follow orders that would result in discrimination
- Speaking out on behalf of a co‐worker
Regarding adverse action, says Cave, the U.S. Supreme Court has put forth the following:
- A reasonable employee would have found the action materially adverse, meaning that it might have dissuaded a reasonable employee from making or supporting a charge of discrimination.
- It’s not petty slights or minor annoyances
- The context matters; every situation is different
Examples of adverse actions include:
- Negative performance evaluation
- Transfer to less desirable position or shift
- Verbal abuse or ostracism
- Increased scrutiny
- Making work more difficult
- Threaten to report immigration status
Retaliation Is about Perception
Retaliation is about perception, says Broda‐Bahm. Here are the differences between the company’s perception and the employee’s perception:
Company’s Perception
- Employee is a divisive malcontent
- Employee is making excuses for poor performance
- Employee uses retaliation threat to avoid termination
Whistleblower’s Perception
- I’m a self‐sacrificing hero
- I have noble motives
- I was crushed for trying to protect company, co‐workers, or myself
The whistleblower thinks:
I complained about something I am certain is illegal, immoral, or unethical,
which made my managers angry and suspicious of me,
so they began harassing me, and did things against me,
but did nothing about what I complained about.
Remember, Broda-bahm says, that juries are primed to distrust the company—they see themselves in the whistleblower.
Strategy to Avoid Retaliation Claims? Embrace The Inner Whistleblower!
Think about what the whistleblower is facing:
- Worsened relations with co-workers
- Loss of a job
- Problems with employability going forward
Broda-bahm offers the following quote to illustrate the challenge:
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.
(James Dungan, Adam Waytz & Liane Young, 2015)
So two fundamental moral values, fairness and loyalty, are in conflict.
Research has shown, says Broda-Bahm, that in cultures where loyalty is emphasized, whistleblowing is less common and less supported, while in cultures where fairness is emphasized, whistleblowing is more common and more supported. He described one study:
- Essays—Participants were asked to read essays. Some essays endorsed fairness values while others endorsed loyalty values.
- Chance to Blow Whistle—Participants were then presented with an opportunity to report a co‐worker who shirked his/her work duties.
- Results—Those primed to embrace fairness blew the whistle more often than those who were primed to embrace loyalty.
Personal Factors
Researchers also found the following factors correlated to higher rates of whistleblowing, says Broda-Bahm:
- Male
- Higher paid
- Longer tenure at company
- Highly educated
- Extrovert
- Proactive personality
Situational and cultural factors were also important:
- Level of organizational support
- Mechanisms for reporting wrongdoing
- Protections for reporting wrongdoing
- Cultural norms
The important thing to recognize, says Broda-Bahm, is that these factors are, to some extent, within the organization’s control.
Embracing the Whistleblower
Broda-bahm suggests employers reduce the threat of retaliation lawsuits by creating a culture that welcomes criticism:
- Encourage internal reporting
- Increase internal resolution and loyalty
- Decrease charges to outside agency
And a culture that features:
- Strong, well‐publicized policies
- Supervisor training on welcoming and channeling criticism
- Leaders who value and reward internal constructive criticism
Less Noble, More Normal
Embracing the psychology of the whistleblower and remembering that retaliation is all about perceptions, you can create a story for the jury that makes whistleblowing less noble and more normal, says Broda-Bahm. Consider the following litigation aspects, he says:
- Don’t blame the employee for breaking ranks
- Prove normalization of whistleblowing
- Point to policies and culture that expect whistleblowing activity by all employees—whistleblowers are doing what we want them to do
Employers should tell a positive story:
- The Company was fair
- The company was responsible, and
- The company followed its own policy.
How do we persuade management to create the culture? Consider the following, Broda-bahm says.
- Dissent is positive
- Trust improves productivity
- Compliance is everyone’s business
- Earlier is better—tell us immediately
- Internal is better
- Wrong is wrong, no matter who breaks the rules
- Metrics matter—how many complaints were there? How many were fixed? How many went outside?
How do we create the culture?
- Policies that encourage dissent and continuous improvement
- Company‐wide training
- Top‐down messaging
- Management leadership
- Whistleblower “guardianship”
- Publicize successes
“So-and-so let us know about this problem. So-and-so was right! We fixed the problem. Thanks to so and so for bringing this to our attention.”
| As of its 23rd year, BLR’s Advanced Employment Issues Symposium is being renamed HR Comply. By any name, it is the nation’s leading human capital management conference for HR professionals, executives, and in-house counsel. The superior content and expert presenters will help you get ahead of workplace policy updates with a one-stop, all-bases-covered overview of breaking updates and proven best practices. Learn more about HR Comply 2018, being held in Las Vegas, November 14-16, 2018. |