Daily Dose: Protecting Employees from Retaliation

Have you ever been afraid to speak up for fear of losing your job? Discrimination complaints are on the rise at federal agencies, but many employees are still afraid to complain for fear of retaliation, according to a new EEOC report. In particular, the EEOC found that the Bureau of Prisons had an unusually poor track record, citing “widespread fear of retaliation among BOP employees.” The Washington Post‘s Joe Davidson unpacks the report in more detail:

EEOC officials decided to send questionnaires to all BOP employees after receiving reports suggesting that “BOP employees have an unusually heightened fear of retaliation,” according to a report the EEOC issued in November.

That’s an unusual level of fear compared with other federal agencies. According to the report, almost two-thirds of fiscal 2003 EEO complaints at the Bureau of Prisons included allegations of retaliation, compared with 40 percent government-wide. By 2007, the gap had narrowed to 47.5 percent for BOP and 42.5 percent government-wide, but employees and union officials say the problem remains.

At Prison Bureau, a Fear to Speak Up

The report is especially troubling given that prison employees are already working in hostile conditions. Moreover, an agency’s culture doesn’t change overnight. It can be incredibly difficult to combat the fear and abuses that the EEOC found in their survey. Have you ever been afraid of retaliation? If you were a manager, what would you to do rectify this situation?


“Daily Dose of the Washington Post” is a blog series created by GovLoop in partnership with The Washington Post. If you see great a story in the Post and want to ask a question around it, please send it to [email protected].

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Mark Hammer

It examines several decades worth of data arising from the various forms of “whistleblower protection” law that have existed since the late 70’s. I realize this is not the specific topic you are broaching, but I feel it is pertinent.

In a word, the report is not encouraging. The chief problem is the disconnect between what the law, and associated mechanisms, cover, and what employees think ought to be covered. Because of that disconnect, a great many things brought forward by employees are not deemed to be “disclosures” under the letter of the law. Moreover, much of the terrain that employees might feel to be retaliation is not legally classifiable as retaliation, either because the actions they feel prompted it were not classified as “disclosures of wrongdoing” under the law, or because the subsequent events are not readily connected to their disclosure behaviour, or because the consequences are so diffuse as to not be easily measurable or documentable. This is why so many claims of retaliation languish and end up dissatisfying.

As the report notes, a not insignificant segment of cases brought forward – and dismissed by the courts – concern what the report summarizes as “debatable managerial decisions”. They may be dumb in the employee’s eyes, and maybe even unconscienable in some manner, but remain within the legal and budgetary authorities of the manager, so there is no “wrongdoing” to disclose. And if the employee won’t shut up about it – however right they may be in the court of public/employee opinion and in the face of ultimate reality – the manager who takes disciplinary action is not “retaliating”, according to the law…unless the disciplinary action is way out of scale with respect to how much of a P.I.T.A. the employee is making of themselves.

Having followed the whole “whistleblower thing” for a decade now, one of the aspects that too few people understand is that, with “debatable managerial decisions” forming much of what employees wish to blow the whistle on, the law always attempts to balance off the employee’s right to disclose wrongdoing with the manager’s right to carry out their legally mandated responsibilities, and do so with full protection from malicious or misguided attack. In other words, the law attempts to thicken and strengthen the thread of the Damocles’ sword that hangs over the head of the manager, so that they are not constantly second guessing themselves, and paralysed by concern over how others might react. And in view of how consistently so many managers underexplain their rationale to employees, or simply keep them out of the loop, managers require such protection to stave off the crush of employees who are completely convinced that the manager’s actions are stupid, biased, machiavellian, etc., because they simply can’t understand why the manager is doing what they are doing, and/or because the manager has not consulted broadly enough (and maybe sincerely enough) to do it in a less inept or suspicion-provoking way.

Mark Hammer

Pt 2

But is whistleblower protection law the answer? Personally, I think not. I draw the analogy between such legislation and public health policy. Consider heart health, for a moment. You can allocate mountains of money to doing bypasses, transplants, angioplasties, and all manner of other post hoc interventions, OR you can invest in prevention so that people simply sidestep the cardiovascular problems that might ultimately require “heroic measures”. Prevention is cheaper, and generally presents us with fewer critical and contentious decisions to be made. Every surgical procedure requiring anesthesia entails risk and a decision by professionals as to whether it is worth the risk to the patient. Asking people to maybe knock off the full fat cheese a bit, and put down the remote now and then, entails no such risk. Similarly, blowing the whistle at work requires people to take sides on an issue they feel entails risk to them, to colleagial relationships, or to the organization or program/project. Disclosing something one feels is “wrong” is, as a public-admin prof friend has written, a “morally ambiguous action”.

The chief problem, as I see it, is that management is frequently “underconsultative”, and more opaque than they need to be. Consulting with those around you, taking in feedback and implementing it to the extent possible, and explaining what it is you’re doing and why (as opposed to merely announcing that you will be doing it), is the functional equivalent of public health policy aimed at prevention.

Really, the objective is not to burden the system (and conceivably mislead the employee) with laws and policies designed to address things after they’ve gone terribly wrong, but rather to make it so that such laws and policies are superfluous by avoiding those sorts of standoffs and corrective measures. Get people to stop smoking, eat right, keep fit, and you don’t have to concern yourself quite so much with assuring you have enough operating suites, surgeons, and hospital beds to handle all those heart attacks and bypasses. Foster a culture of consultation, of admitting mistakes early enough in the game to correct them (and of people above you accepting that mistakes can and will be made), and a culture of truly communicating the rationale for decisions, and figuring out to do about retaliation will be much much less of a challenge.

Lezli Rowell

See http://newsletter.feltg.com/page/6.aspx (scroll down) for Ernest Hadley’s relevant article, “Supremes Continue Broad View of Anti-Retaliation Clause” in an archived FELTG newsletter … here’s a teaser:

Continuing a trend that began with Robinson v. Shell Oil Co., 519 U.S. 337 (1997) and was carried forward in Burlington Northern & Sante Fe Railway Co. v. White, 548 U.S. 53 (2006), the U.S. Supreme Court has ruled that Title VII’s anti-retaliation clause is broad enough to cover a person closely associated with an individual who files an EEO complaint. In Thompson v. Northern American Stainless, LP, No. 09-291 (January 24, 2011), the Court held that the plaintiff, whose fiancé who also worked at Northern American and had filed a charge with EEOC, stated a claim for relief by alleging that three weeks after the charge was filed, he was fired in retaliation …”