Shooting the Messenger: Vilifying Whistleblowers Hurts Everyone

2019-10-11T10:04:35-06:00 October 11th, 2019|

Retaliation undermines the goals of anti-discrimination laws including:

  • Fair pay requirements
  • Safety protections
  • Accounting regulations
  • Environmental safeguards

How can employees invoke the rights provided by these laws if they know they will be retaliated against for reporting misconduct?

How can they speak up without fear of repercussions to help the government stamp out fraud?

They can’t.

Retaliation is deeply ingrained in our culture. Since the Code of Hammurabi, some 3,700 years ago, people have preached that one should return whatever harm was done to them with equal vengeance. Even the Bible preaches an “eye for eye.”

The President of the United States recently suggested executing those that report misconduct (“You know what we used to do in the old days when we were smart with spies and treason, right? . . . We used to handle it a little differently than we do now.”) Maggie Haberman and Katie Rogers, Trump Attacks Whistle-Blower’s Sources and Alludes to Punishment for Spies, NEW YORK TIMES, (Sept. 26, 2019).

It’s no wonder that many managers exact vengeance upon employees who dare oppose them or report issues at work.

Many laws are now in place to protect whistleblowers from retaliation.

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to take a materially adverse action against an employee because he or she engaged in some action protected by the Act. Perkins v. Int’l Paper Co., 936 F.3d 196, 213 (4th Cir. 2019).

Protected activity includes:

  • Participating in an ongoing investigation; or
  • Opposing discriminatory practices in the workplace.

If you think you have suffered unlawful retaliation, contact the whistleblower attorneys at Herrmann & Murphy.

Retaliation laws provide even more protection to employees than the underlying discrimination laws. To win a retaliation claim, the plaintiff need only show that the challenged action might have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 54, 126 S. Ct. 2405, 2407, 165 L. Ed. 2d 345 (2006).

Discrimination victims must show that the challenged action qualifies as an “adverse employment action,” significant enough to adversely affect the terms, conditions, or benefits of the plaintiff’s employment (i.e., “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits”). Swaso v. Onslow Cty. Bd. of Educ., 698 F. App’’x 745, 748 (4th Cir. 2017).

This expanded protection shields whistleblowers from smaller acts of retaliation and extends these protections to a whistleblower’s loved ones who haven’t engaged in any protected activity of their own (e.g., barring a company from firing an employee’s spouse because they engaged in protected activity).

If you think you have suffered unlawful retaliation, contact the retaliation attorneys at Herrmann & Murphy.

North Carolina has a Retaliatory Employment Discrimination Act (REDA) that makes it unlawful for a company to “discriminate or take any retaliatory action against an employee because the employee in good faith does or threatens to . . . file a claim or complaint, initiate any inquiry, investigation, inspection, proceeding or other action, or testify or provide information to any person with respect to any of the following:”

Similar to Title VII’s retaliation protections, REDA has a broad scope intended to encourage employees to report violations of the law and to protect those that do. Hopkins v. MWR Mgmt. Co., 2017 WL 2380227, at *10 (N.C. Business Court May 31, 2017).

The Federal Department of Labor also administers a whole array of anti-discrimination protections, including protections for employees who engage in protected activity related to:

Many of these protections provide very little time for employees to file claims to protect their rights.

If you think you have suffered unlawful retaliation, contact the employment attorneys at Herrmann & Murphy right away.

Reach out for a consultation today.

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