By Dr. Ken Broda-Bahm:
The Equal Employment Opportunity Commission (EEOC) has released its 2015 Enforcement and Litigation Data, and one of the items that stands out is that the greatest number of charges filed are in the category of retaliation. Continuing a trend from prior years, the data show that almost half -- 44.5 percent -- of the charges filed were for retaliation. This is an important fact: The lion's share of claimed threats to equal opportunity are not from discrimination itself, but from the perception of adverse treatment of those who report on law and policy violations, including discrimination. That raises a question that is critical in today's employment law contexts: How should companies treat whistleblowers? A rock solid answer is, "Don't retaliate." Add to that, "And be very clear about any actions that could be perceived as retaliatory." But there is more nuance to it, and that nuance also applies to the issue of how whistleblowers should be assessed and addressed in litigation. Both sides need to resist the lure of an oversimplified view of the whistleblower who, to the plaintiff, might be a noble self-sacrificing hero, and to the defense might be a divisive malcontent seeking excuses for a poor employment record.
There is probably more to it than that. A recent research article provides some insight into that nuance. Entitled, "The Psychology of Whistleblowing" (Dungan, Waytz & Young, 2015), the article comes from a group of psychology and management researchers from Boston College and Northwestern University. "From one perspective," they write, "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, they conducted five studies showing that whistleblowing represents a tradeoff in 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. In this post, I will take a look at some implications of that tradeoff for companies, for plaintiffs, and for defendants.