Whistleblowers Need Not Apply

Nov. 18, 2018

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Under Title VII of the Civil Rights Act of 1964, retaliation against someone who complains of discrimination is prohibited. In contrast, the “swiss cheese” laws covering whistleblowing often provide little to no protection for the tipsters, who are likely to be ostracized and blacklisted from their company or even industry after the story breaks.

After reviewing the Whistleblowers Protection Act, Dodd–Frank Act, Sarbanes–Oxley Act, and the False Claims Act, Leora Eisenstadt and co-author Jennifer Pacella uncovered many of the loopholes that would inherently exclude whistleblowers from potential support. Although the laws prohibit retaliation to some extent, three out of four statutes do not protect whistleblowers from future employers’ prejudices.



Leora F. Eisenstadt and Jennifer M. Pacella, Whistleblowers Need Not Apply, 55 American Business Law Journal 665 (2018). 

Whistleblowers are severely disadvantaged when they apply for jobs. Many whistleblowers experience retaliation twofold—once, at their place of employment after they initially blow the whistle, and, second, on the job market for any subsequent employment. This negative trail follows whistleblowers, labeling them as disloyal, suspicious, and, ultimately, not ideal employees and, thus, unable to find work. Current federal law largely ignores this problem, and protections for job applicants with whistleblowing histories have been severely lacking in some of the most prominent whistleblowing statutes. This Article is the first to examine this glaring lack of legal protections as it pertains specifically to whistleblower job applicants by undergoing a comparative analysis of the retaliation protections available in a number of federal statutes and suggesting statutory reform based on that analysis. Specifically, this Article draws comparisons between civil rights statutes, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, which each provide expansive protections for job applicants, and the most prominent current federal whistleblowing statutes, the Sarbanes-Oxley Act, the Dodd-Frank Act, and the False Claims Act, which lack these protections. “Whistleblowers Need Not Apply” concludes by recommending amendments to these federal whistleblowing statutes, arguing for specific retaliation protections and redress for whistleblowers who are denied a chance to work again because of their past revelations.