Resistance and Whistleblowing

Employees within governments, corporations, businesses and other organizations can play an important role in bringing important information regarding crimes and other harmful actions to the forefront. Given their value as insiders, they however run serious risks of retaliation for calling attention to or even questioning (behind closed doors) certain (mis)conduct. The retaliation may take the form of terminating that individual's employment and/or otherwise discriminating against them. Such retaliation is a mode of enforcement for breaching certain "codes of silence". Questioning or even calling attention to such behavior represents an act of resistance to those perpetrating the acts as well as the informal normative system that allows it to continue. 

When whistleblowers engage in their act(s) of resistance, they are placed in a rather vulnerable position. This is why legislatures have passed whistleblower protection - to protect such individuals who are adversely treated for engaging in "protected" activity. Provided the protections are adequate, they are an important way in which States can legitimize and validate such resistance.

In a recent decision by the United States Supreme Court (SCOTUS), Lawson et al v FMR LLC et al, the Court engaged in a broader interpretive reading of the whistleblower protection afforded under the Sarbanes-Oxley Act of 2002. Central to the decision was whether employees of a public company's private contractors and/or sub-contractors were protected from retaliation. The Court concluded that a textual and contextual reading of the statutory language led to the conclusion that Congress intended that the protection be extended not only to those who were direct employees of a public company, but also to those who worked for contractors and sub-contractors for said company. As such, those who qualified for protection comprised a larger group.

Sarbanes-Oxley was enacted in the aftermath of the Enron shareholder fraud scandal. Given the involvement of numerous professionals employed by firms contracted by Enron as part of the fraud, the United States Congress passed the Act and the whistleblower protection specifically to grant protection to those who would want to speak out (and as required by other portions of the Act, they are obligated to). The Court observed that those who wanted to call attention to the fraud committed by Enron and its contractors were discouraged at every turn. 

Both Congress in enacting the provision in question, and the Supreme Court through its interpretation at the very least allow those who have been adversely treated for their protected conduct to seek a civil remedy through litigation. 

However, it may still provide small comfort to those who have blown the whistle or provide sufficient incentive to those who are contemplating become whistleblowers. Whistleblowers and their families can face considerable economic and psychological turmoil for speaking out. Furthermore, not all whistleblower protection regimes are viewed by critics as sufficiently robust or meaningful (see here and here). 

Whistleblowers can play an important role in ensuring accountability and checking illegal or otherwise harmful or abusive behavior. Given the retaliation they are likely to face as a result of their conduct, protections have to be commensurate with the risk(s) they take.