Whistleblowing in the Compliance Era

Abstract

International events over the last year have propelled theimportance of whistleblowers to the forefront. It is increasinglyevident that whistleblowers provide immense value to society.Yet, for years, whistleblowers have been victims of retaliation,commonly experiencing threats, discrimination, andemployment termination due to their reporting. Against thebackdrop of a society heavily defined by compliance-focusedinitiatives—where organizations and industries constructrobust compliance programs, internal policies, and codes ofconduct—this Article highlights a significant gap in legalprotections for would-be whistleblowers. While complianceinitiatives demonstrate that active self-regulation isincreasingly a staple of organizational governance, this Articlepinpoints the problems that arise when such initiatives extendbeyond applicable legal thresholds for retaliation protection.This over-extension leaves vulnerable employees and potentialwhistleblowers without legal recourse following adverseemployment actions, even if they comply with their employers’ internal policies and compliance programs. We examine thisgap in legal protections in the context of compliance initiativesin three domains: equal employment opportunity and sexualharassment; securities fraud; and anti-corruption. We thencompare these initiatives with the legal and regulatorycompliance postures under Title VII of the Civil Rights Act of1964, the Dodd–Frank Wall Street Reform and ConsumerProtection Act, and the Foreign Corrupt Practices Act,respectively, to illustrate how most compliance initiatives failto mirror the retaliation protections under those statutes. Toremedy this gap in protections, we propose complementarysolutions under contract and tort law frameworks, coupledwith soft law initiatives