Whistleblowing and the new discrimination in the 21st century workplace

August 1, 2017 by John Collins MA, SHRM-SCP

Financial fraud is a national epidemic, which is why the U.S. Securities and Exchange Commission (SEC) is increasingly eager to award damages to persons who take the risk of exposing the criminal or the incompetent. 

These awards, however, have relevance beyond the financial districts. They are making waves across the entire public sector as well.

When we think of a protected class of employee, we tend to picture females, minorities, religious devotees, persons with disabilities or different national origins, and older workers to name a few.  It is generally well- known that these individuals are entitled to certain protections under the law, and when those laws are broken, it is regarded as illegal discrimination.

There is another protected class, however, that is too often ignored. In that class are employees who have come forward to expose what they believe is potential misconduct, incompetence, or dereliction of duty.

Notice the choice of wording here. . .  what they believe is potential misconduct.

An official confirmation of misconduct is not necessary for a whistle-blowing employee to have certain rights or protections under the law.  If it is later found that the complaint was patently frivolous or based on gross misjudgment, then the misjudgment itself can be carefully handled as a competency issue. But under no circumstance can the act of bringing attention to improper behavior be punished or result in hardship to the employee.

Any punitive effects or hardships are considered retaliation, which is not tolerated in litigation. This can be as obvious as a demotion or as subtle as the cold shoulder.

Many high-stakes organizations function within thick, bureaucratic cultures that place a high premium on loyalty and conformance. In such a culture, whistle-blowers are more likely to be viewed as weak or “breaking the code.” They may be marginalized or denied opportunities for promotion, all of which can be tantamount to retaliation for whistle-blowing – the illegal discrimination of the 21st century.

Not too long ago, in 2014, we marked the 50th anniversary of the Civil Rights Act of 1964.  Signed by President Lyndon Johnson, the landmark legislation outlawed discrimination based on race, color, religion, sex, or national origin.

Johnson also signed the Age Discrimination in Employment Act, which prohibited discrimination in employment matters against persons over the age of 40.  Other legislation followed that broadened and clarified what were to be known as protected classes.

With everything that we have witnessed in the last two decades related to financial, corporate, and tax fraud, our government institutions are recognizing the importance and value of people who are willing to risk their own well-being to stop illegal behavior.  We are seeing in actual litigation the treatment of whistle-blowers as a sort of protected class not unlike those codified by congress in 1964.

Also trending is the type of discrimination witnessed in contemporary labor disputes involving discrimination.  Thankfully, overt discrimination and harassment are subsiding in the workplace.  More frequently than years past, however, illegal discrimination is subtle and subconscious, reflecting personal biases and prejudices.  Offenders are often surprised by the complaints brought against them because they did not see their behavior as being misconduct.  It all came so naturally to them.

But it’s a huge problem for employers, especially when the offender is a person of elevated rank or authority.  Supervisors must understand exactly what illegal discrimination is, whether it is brought upon a person based on their minority status or their being recognized as a whistle-blower.

All of the following examples of behavior are potentially illegal if it can be demonstrated that they were in retaliation against a protect class or protect- ed activity such as whistle-blowing:

  • Denying a promotion
  • Denying a pay increase
  • Removing someone from an email distribution list
  • No longer saying “good morning” to an employee or coworker
  • Not inviting someone to an after-work social gathering
  • Not inviting someone to a meeting that is relevant to their work
  • Being rude or condescending
  • Displaying outright hostility or abusiveness
  • Intimidation or coercion
  • Not “going to bat” for someone as you would for someone else
  • Turning away from an employee or colleague who attempts small talk

Ideally, good behavior will happen in an organization not because of the law but because it is the right thing to do.  Employees who bring forward potentially bad news are not the enemy.  They may be right, they may be wrong.  It doesn’t matter.  What matters is that every organization pay close attention to employees who, for whatever reason, decide to blow the whistle on what they see as being improper.  Regardless of the validity of the complaint, the cost of ignoring or dismissing it can be devastating.