Shooting the Messenger: Villainizing Whistleblowers Makes Us All Less Safe

By Kevin Murphy

Retaliation subverts the aims of anti-discrimination laws, fair pay rules, safety regulations, accounting requirements, environmental safeguards, and many other laws. Employees cannot invoke the rights provided by these laws or help the government stamp out fraud if they know they will be retaliated against for speaking up or reporting misconduct.

Retaliation is deeply rooted in our culture. Since the Hammurabi Code, the rule has been that one should return whatever harm was done to them with equal vengeance. As the Old Testament decrees, “fracture for fracture, eye for eye, tooth for tooth, shall he repay. Whatever degree of blemish he has inflicted, so shall he be compelled to suffer.” Leviticus 24:19-20; see also Exodus 21:24 (“An eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot”). The Greek historian Plutarch tells of kings beheading the bringer of bad news rather than facing the underlying issue itself.

Even the President has 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).

With this history in mind, it’s not surprising that many managers look for opportunities to retaliate again employees who step out of line and oppose them.

But the world has changed over the last 3700 years. The New Testament abandoned Hammurabi’s instruction. Instead of “an eye for an eye,” one should offer your left cheek to someone who strikes you on the right. Hand over your cloak to one who took away your tunic. (Matthew 5:38-40). Gandhi cautioned that an eye for an eye would only leave the whole world blind.

Many laws are now in place to prevent 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 and should be “liberally construed” in light of its broad remedial purpose. Butler v. Drive Auto. Indus. of Am., Inc., 793 F.3d 404, 409 (4th Cir. 2015). “This is particularly so in the retaliation context, where Title VII must be read to provide broader protection for victims of retaliation than for even victims of race-based, ethnic-based, religion-based, or gender-based discrimination, because effective enforcement could only be expected if employees felt free to approach officials with their grievances.” DeMasters v. Carilion Clinic, 796 F.3d 409, 418 (4th Cir. 2015).

Similar to Title VII’s retaliation protections, North Carolina’s Retaliatory Employment Discrimination Act (REDA) has been interpreted to have 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).

But what about retaliation for reporting retaliation? Such meta retaliation cases come up quite often with odd results.

From the frequency of 12(b)(6) motions filed on the issue, it seems that Plaintiff and Defense counsel love nothing more than to debate the meaning of Pierce v. Atl. Grp., Inc., 219 N.C. App. 19, 28 (2012) and whether internal whistleblowing counts as protected activity for purposes of REDA. (Spoiler alert, this plaintiffs’ attorney says it does!)1

In Pierce, the Court of Appeals dismissed the REDA claim because the only activity it would have counted as protected was a hotline call to report “the retaliatory treatment” plaintiff received rather than “a concern regarding occupational health and safety.” Id. at 28.

But why should that matter? Is it simply a textual problem with REDA or, as a matter of principle, should employers be legally permitted to fire employees for reporting retaliation, but not for the underlying discrimination, safety report, fraud, etc.?

REDA makes it unlawful 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:”

  • Workers’ compensation matters;
  • Wage and hour violations;
  • Occupational Safety and Health Act (OSHA);
  • Sickle Cell anti-discrimination laws;
  • National Guard reemployment rights;
  • Genetic testing information;
  • Mine safety law, etc.

Title VII doesn’t suffer from such a problem. The anti-retaliation provision can easily be read to prohibit retaliation for reporting retaliation. 42 U.S.C. § 2000e-3 (making it unlawful to discriminate against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter”) (emphasis added).

REDA itself does give employees “allegedly aggrieved by a violation of [REDA],” the right to file a written complaint with the NCDOL and file a lawsuit. This should be enough to allow North Carolina’s Public Policy tort to bat cleanup. Plaintiffs state valid claims for “wrongful discharge in violation of public policy when an employee is discharged for reporting a violation of a state statute.” Driskell v. Summit Contracting Grp., Inc., 325 F. Supp. 3d 665, 675 (W.D.N.C. 2018) (citing Lenzer v. Flaherty, 106 N.C.App. 496, 418 S.E.2d 276 (1992)). In Driskell, the Court held that employers violate North Carolina public policy where they fire an employee for reporting violations of assault and battery laws.

In the case of meta REDA retaliation, internal or external reports of violations of REDA should be able to serve as the requisite protected activity. Still, this would mean that only termination claims are covered; whereas REDA provides a cause of action to remedy lesser adverse actions for other kinds of enumerated protected activities. Clearly, the General Assembly did not intend to leave this kind of a hole in the protections provided by REDA. If anti-retaliation laws are truly intended to reverse our vengeful history and encourage whistleblowers to come forward, there is no reason to exclude those who report retaliation.

1 In Jurrissen v. Keystone Foods, LLC, No. 1:08CV128, 2008 WL 3925086, at *2 (M.D.N.C. Aug. 20, 2008), the plaintiff “spoke with an auditor/inspector, who was at the [defendant’s] plant to conduct an internal audit” of Defendant’s operations. Management counsel often cite Delon v. McLaurin Parking Co., 367 F. Supp. 2d 893 (M.D.N.C.), aff’d, 146 F. App’x 655 (4th Cir. 2005) for the proposition that internal complaints cannot support a REDA claim. But the complaint at issue in Delon was the plaintiff’s comments to a manager about her immediate supervisor’s management style. Id. at 897 (“On the way to the meeting, while alone with Cowley, Plaintiff criticized Swearingen’s management, but did not accuse her of any illegal activity or mention the notebook”). The Delon Court was correct that such “a complaint to a manager about a supervisor” cannot support a REDA claim because it has nothing to do with any of the REDA-enumerated statutes. Id. at 902.