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Reinforcing the protection of whistleblowers

Events over the last few years have led to more regulations that guard against discrimination, corruption, and securities fraud within companies in various industries. However, according to professors Leora Eisenstadt, Jeffrey Boles and their co-author Jennifer Pacella at Indiana University, this expansion of private regulations has surpassed what is required by federal law. As a result, whistleblowers who report conduct prohibited by company policy—but not by law—may be left legally unprotected if and when they face retaliation for their efforts.

Additional Notes: The authors won the Virginia Maurer Ethics Award for the best ethics paper at the Annual Academy of Legal Studies in Business (ALSB) conference.

Jennifer M. Pacella, Leora F. Eisenstadt and Jeffrey R. Boles, Whistleblowing in the Compliance Era, 55 Georgia Law Review 147 (2020). 

International events over the last year have propelled the importance of whistleblowers to the forefront. It is increasingly evident that whistleblowers provide immense value to society.

Yet, for years, whistleblowers have been victims of retaliation, commonly experiencing threats, discrimination, and employment termination due to their reporting. Against the backdrop of a society heavily defined by compliance-focused initiatives—where organizations and industries construct robust compliance programs, internal policies, and codes of conduct—this Article highlights a significant gap in legal protections for would-be whistleblowers. While compliance initiatives demonstrate that active self-regulation is increasingly a staple of organizational governance, this Article pinpoints the problems that arise when such initiatives extend beyond applicable legal thresholds for retaliation protection. This over-extension leaves vulnerable employees and potential whistleblowers without legal recourse following adverse employment actions, even if they comply with their employers’ internal policies and compliance programs.

We examine this gap in legal protections in the context of compliance initiatives in three domains: equal employment opportunity and sexual harassment; securities fraud; and anti-corruption. We then compare these initiatives with the legal and regulatory compliance postures under Title VII of the Civil Rights Act of 1964, the Dodd–Frank Wall Street Reform and Consumer Protection Act, and the Foreign Corrupt Practices Act, respectively, to illustrate how most compliance initiatives fail to mirror the retaliation protections under those statutes. To remedy this gap in protections, we propose complementary solutions under contract and tort law frameworks, coupled with soft law initiatives.