Recent Studies on Whistleblower Retaliation

Retaliation against whistleblowers by their employer is a problem that touches us very personally as whistleblower attorneys. We see the impact first hand through the employees contacting us, both in our clients and potential clients. It is a very unfortunate aspect of modern whistleblowing. Although we attempt to minimize the potential for it where possible, many individuals have faced retaliation before they contact us and some will face it after reporting.

A 2011 National Business Ethics Survey by the Ethics Resource Center found that one in five employees who report misconduct perceive retaliation for doing so. It also found a rapid and troubling rise in retaliation at even companies with a demonstrated commitment to ethics. We have seen nothing to the contrary in our practice.

We’re thus encouraged by academic studies into this problem and hope that they will one day assist in creating laws and corporate practices that minimize whistleblower retaliation and maximize the protection afforded to these courageous individuals.

In the last few weeks, we have seen two studies worth highlighting in order to encourage this type of research. Although our personal experience may call into question some of their conclusions and results, we hope that further research into this area will prove fruitful in stopping this practice at the corporations where our clients and others work.

A study out of the University of Michigan Ross School of Business found that leaders who speak up are less likely to suffer social sanctions than others. The study manipulated the leadership status of the people who spoke out. Individuals in a leadership position were thought of more highly than other employees when they spoke out about unethical behavior.

Although we have seen cases of high level individuals at businesses experience discrimination based on their internal and external reports of misconduct, we do hope that this is a sign that attitudes about whistleblowing are changing within organizations.
Another study suggests that an emphasis on retaliation protections could decrease the reporting of misconduct as it increases the perception of reporting risk. This one was published in Behavioral Research in Accounting, a journal of the American Accounting Association journal.

This study tested whether explicit descriptions of retaliation protections would discourage whistleblower reporting. Specifically, they asked two groups of auditors with approximately one year of experience and enrolled in a graduate class whether an accountant aware of misconduct by the supervising partner on an engagement should report it to the audit firm’s hotline. In the group where language was added reiterating the company’s policy against intimidation or retaliation, including threatening behavior, harassment, loss of job or promotion, and other retaliation, the students believed it less likely that the hypothetical accountant would report the wrongdoing and more likely to suffer retaliation as a result. The study authors concluded that their study “is the first to demonstrate that offering explicit protections to whistleblowers can have these unintended and counter-intuitive consequences.”

In our practice, we are more concerned with the companies that have an explicit policy against retaliation and in favor of internal reporting, yet do not honor it when an individual is reports a problem to them. We hope that future research will help identify and remedy this situation.