When is it just an email and when is it retaliation?
While we know that whistle-blowers are supposed to be protected from retaliation–we also know that defining retaliation can often be a murky process. What “feels like” retaliation to the frightened, defensive, anxious whistle-blower may not meet the legal standard of retaliation. But what if it does? “What if they and their actions become the subject of a widely distributed email? Is that a form of retaliation?” This was the question asked by some Indiana University researchers and their writeup of the findings is now awaiting publication in the North Carolina Law Review.
The paper uses the 2007 case of Belmont Abbey College. Belmont Abbey is a Catholic school in North Carolina that chose to exclude contraceptives from employee health coverage. Eight members of the faculty complained to the EEOC (alleging religious and gender discrimination) and the President of the school then sent out a mass email to all faculty, staff and students detailing the complaint and identifying the faculty members who made the complaint. The complainants then filed a retaliation complaint with the EEOC. In 2009, the EEOC upheld the gender discrimination complaint but found no cause for the religious discrimination complaint. The EEOC also made a statement that the President’s email was meant to cause a “chilling effect” and make other faculty and staff hesitate before complaining of discrimination.
The authors summarize the murky nature of just what constitutes retaliation as interpreted by the courts in often contradictory rulings. They consider privacy in matters involving religion, sexuality, abortion, sexual harassment, and sexual assault. They examine fear of reprisal (or retaliation) as well as the research on who is most maligned for reporting inappropriate or illegal behavior. (It will likely not be surprising that minorities and women and other people in low positions of power are most villainized. Nor will it likely come as a surprise that because of their assessment of how they will ultimately be treated–often these people are very reluctant to blow the whistle.)
Ultimately, the researchers identify a number of issues for organizations to consider as they contemplate communications that will identify whistle-blowers:
Consider the whistle-blower’s privacy.
Consider the severity of possible reprisal.
Consider the likelihood of reprisal.
Consider the vulnerability of the employee to reprisal.
Consider the form and tone of the disclosure.
Consider the big picture or as the authors say “the totality of the circumstances”.
Overall–the authors conclude that disclosure may be seen as an adverse action against a whistle-blower unless there is a defensible “need to know”. In the case of Belmont Abbey’s email to everyone associated with the college (i.e., faculty, staff and students) there was no need for everyone to know. The intent of the email was “an attempt to shame and ostracize the complainants to produce a chilling effect”. While there is a need to balance employer and employee rights in this sort of situation–it is also critical to maintain clarity as to the goals of different communications about the complaint. In an emotionally difficult and complex situation–it is imperative to think through actions taken (on both sides) carefully.
This is a very thorough treatment of the court decisions and the contradictions and complexities in this area of law. We cannot do justice to all it contains in a single blog post. If you are involved in a whistle-blower case (or might become involved) this is a good article to read for a roadmap through a territory laden with complexity.
Prenkert, JD, Magid, JM, & Fetter-Harrott, A (2013). Retaliatory disclosure: When identifying the complainant is an adverse action. North Carolina Law Review.