Anti-retaliation policies don’t always stop bullying
Shut down for speaking up
To a very great extent, people will not risk their jobs to speak up about problems. They cannot afford it. That is reality. It is the very reason why the Occupational Safety and Health Act has protection for whistleblowers. It is also the reason for the Federal Whistleblower Protection Act (WPA).
Workplace safety and health improves when workers feel safe to speak up about workplace problems. Americans benefit when Federal employees feel safe to speak up about problems they see in their agencies. They should be protected by the WPA. Unfortunately, there is a serious short-coming in that law itself. Fixing it would help to protect the public and to improve government.
The Office of Special Counsel
The U.S. Office of Special Counsel (OSC) is an independent federal investigative and prosecutorial agency. One of its key functions is to enforce the Whistleblower Protection Act. Keep in mind that the act applies only to Federal employees. (Some whistleblower protection for private sector employees under other laws is enforced by the U.S. Department of Labor.)
The short-coming in the law
The Whistleblower Protection Act (WPA), when enforced, protects whistleblowers from retaliation through personnel actions that are taken, or threatened, or deliberately not taken when they should be taken. Notice that this is all about formal “personnel actions”—done or purposefully not done.
In the real world, those who would retaliate against whistleblowers are not limited to official personnel actions. When the wicked witch in the Wizard of Oz said, “I will get you, my pretty, and your little dog too,” she was not referring to personnel actions. She had other methods, and so do the retaliators. (They are like those horrible flying monkeys in the movie.)
Most of the stories you and I have read about retaliation against whistleblowers involve psychological aggression, i.e., bullying. Some examples are: move the person into an office in the basement; isolate the person from co-workers; publicly humiliate the person; give the person meaningless work or overwhelm the person with work; and assign the person demeaning work or demeaning training.
In my 43 years of Federal service, including as union steward and a supervisor, I found that bullying rarely involves “personnel actions.” Similarly, most actions and deliberate inactions intended for retaliation do not involve personnel actions. Consequently, the Whistleblower Protection Act’s narrow definition of retaliation does not protect whistleblowers from most retaliatory behavior. You don’t have to fire or demote whistleblowers to chase them away or make them sick.
Examples of retaliation not covered
- It is fundamental in labor-relations that management has the right to decide what work to do and how to do it. Now, consider the case when management assigns a task for the purpose of demeaning and degrading an employee, rather than for legitimate business purposes. An example is assigning one highly-intelligent, professional employee (out of many in the office) to rearrange the files for three months, after she raised too many sensible questions. It looked like retaliation to the staff, but it was not an official personnel action. She quit and got a full scholarship for an advanced degree at a top school.
- Management has the right to assign training, for new skills or to upgrade weak skills. So, an assignment to a remedial writing class could be appropriate and useful. What if a male boss assigns a remedial writing class to a more experienced, highly successful female staffer? That both of them were attorneys and members of the bar should make you wonder.
What if she went to an Ivy League university and top ten law school (and had an exceptional verbal SAT score), and he went to much lower ranked schools? Finally, what if he assigned the remedial writing class shortly after that highly-educated and very-intelligent attorney testified that her boss had verbally abused another employee, when management called her to testify under oath? In a survey I did on this case, about 70 percent saw the remedial writing class as retaliation for her testimony. Almost everyone else saw it as bullying. (Two outliers still thought it could be an appropriate assignment. I wonder about them.) The humiliating assignment to a remedial writing course was not a personnel action. Her agency settled before the trial in Federal Court.
- In one widely publicized case, management at a hospital moved an outspoken surgeon to a broom-closet office in the basement. Such a move was clearly intended to demean and humiliate the doctor. But was it a personnel action under the WPA? No. It was not a termination, demotion, or a geographical reassignment. However, you can be sure that the doctor and his colleagues got the message, and knew it was retaliation.
Various forms of overt hostile behavior and covert passive-aggressive behavior can be and are used to retaliate against whistleblowers (and for other bullying purposes). By limiting retaliation only to official personnel actions, the WPA greatly limits the protections it provides. The WPA is good, but it would be better with broader protections.
A broader definition of retaliation
The Equal Employment Opportunity Commission (EEOC) recognizes that retaliation can and does occur outside of personnel actions. The EEOC definition of retaliation provides stronger protection against retaliation (for protected activity) than the WPA does for whistleblowers. The following is from https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm.
When is an employer action serious enough to be retaliation?
Retaliation includes any employer action that is "materially adverse." This means any action that might deter a reasonable person from engaging in protected activity.
"Materially adverse" actions include more than employment actions such as denial of promotion, non-hire, denial of job benefits, demotion, suspension, discharge, or other actions that can be challenged directly as employment discrimination. Retaliation can be an employer action that is work-related, or one that has no tangible effect on employment, or even an action that takes place exclusively outside of work, as long as it may well dissuade a reasonable person from engaging in protected activity.
Whether an action is materially adverse depends on the facts and circumstances of the particular case. The U.S. Supreme Court has held that transferring a worker to a harder, dirtier job within the same pay grade, and suspending her without pay for more than a month (even though the pay was later reimbursed) were both "materially adverse actions" that could be challenged as retaliation. The Supreme Court has also said that actionable retaliation includes: the FBI's refusing to investigate death threats against an agent; the filing of false criminal charges against a former employee; changing the work schedule of a parent who has caretaking responsibilities for school-age children; and excluding an employee from a weekly training lunch that contributes to professional advancement.
The examples above provided in the EEOC document describe a broad range of psychological harassment and intimidation that is workplace violence in many Federal workplace violence programs (e.g., USDOL, DHHS, etc.). The EEOC policy recognizes that retaliators do not have to go so far as firing, demoting, or relocating a target. Rather, retaliators only need to torment/harass the target (usually, out of his or her job). Targets of retaliation who are whistleblowers (not complaining of discrimination) have no protection against psychological violence—unless their organizations have an effective policy against such conduct.
You and I, as citizens, need Federal workers to speak up when they see mismanagement and corruption. Otherwise, the public suffers. For that reason, the WPA needs improvement. The definition of retaliation should be brought up, at least, to the sensible EEOC standard.