Study Defines When Disclosing a Whistle-Blower's Identity, Like in an Email, Becomes Retaliation
Indiana University news release - Jan. 7, 2013
Under the law,
whistle-blowers are supposed to be protected from direct reprisals on
the job, including discrimination. But what if they and their actions
becomes the subject of a widely distributed email? Is that a form of
retaliation?
Two professors at Indiana University's Kelley School of Business set
out to answer that question and determine when public disclosure of the
whistle-blower's identity -- like in an email -- is sufficient to
support such a claim, in a paper that has been accepted for publication
in North Carolina Law Review.
"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 whistle-blower. 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.
"It doesn't even provide a framework for how to consider these
issues," he said. "To the extent that they've come up, the courts have
been inconsistent and not made these determinations in a coherent way.
The outcomes are fairly consistent, but the reasoning is not consistent,
which is always a problem in the law."
The courts have been inclined to put a stop to retaliation so that
employees who blow the whistle on discriminatory practices are not
threatened or prevented from doing so, said Julie Manning Magid,
associate professor of business law at the IU Kelley School of Business
Indianapolis.
"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," Magid said.
Allison Fetter-Harrott, an assistant professor of political science at Franklin College, also was a co-author on the study.
In their paper, the professors discuss social science literature and
analogous cases regarding when parties to litigation can remain
anonymous to come up with a framework for defining retaliatory
disclosure.
Also 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.
"The facts of Belmont Abbey demonstrate a doctrinal gap in the competing interests of employers and employees."
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.
"We recommend a standard for retaliatory disclosure that considers
disclosure an adverse action unless a 'need to know' defense exists,"
they said.
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.
The form and tone of the disclosure is another consideration. Unlike
in the Belmont Abbey case, sometimes word may get out inadvertently,
because one of the parties involved does not keep the matter
confidential.
The paper, which was chosen as the best paper of 2012 by the Pacific
Southwest Academy of Legal Studies in Business, noted that companies do
maintain a right to disclose that there are employee complaints in order
to report the matter to shareholders or expose a perceived injustice.
"It was an interesting case," Magid said. "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. It
really has important implications, and I'm glad we were able to present a
new way of approaching it."
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