Defining Employer Retaliation in Whistleblower Cases

In the new study, "Retaliatory Disclosure: When Identifying the Complainant Is an Adverse Action," researchers from the Indiana University (IU) Kelley School of Business set out to determine when public disclosure of a whistleblower's identity, such as through an email, may be classified as retaliation.

"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 whistleblower. 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.

The assurance of anonymity, however, is a key reason employees may be willing to speak up in the first place.

"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," said Julie Manning Magid, associate professor of business law at the IU Kelley School of Business Indianapolis.