When whistleblowing started up in the 1960s/1970s the actors
were an elite group. Back then it was Ralph
Nader versus unsafe cars and Karen Silkwood against dangerous
nuclear power plants. The issues were
big, and complaining could be dangerous.
They were proper heroes. But
times have changed.
As business worked more with government that lacked resources
to keep its partners in check, our value became more obvious. More laws came to protect whistleblowers
against retaliation. More people concluded
they would be protected, and the number of people disclosing wrongs increased
rapidly.
In 2006 the number of corporate whistleblower reports
averaged about 8 per
thousand employees. By 2016 the rate
had increased some 75% to 14
per thousand employees. Similarly, complaints
to the Department of Labor rose
68% from 2008 to 2017.
Reporting to federal programs that offer rewards also surged. Between 2012, its first full program year,
and 2017, the SEC saw a nearly
50% increase in tips. False Claims Act
suits are fewer and vary more from year to year. The average number of new FCA cases in 2012-2016
(812) rose 158% over the 1987-1991 average (312).
Awareness of and the courage to report acts of sex abuse have
grown visibly in recent years. Although
the early focus was on Hollywood nasties, the problem is widespread. In a national survey 81%
of women and 43% of men said they had experienced sexual harassment or
assault over their lifetimes.
As whistleblowing became popular, the range of complaints
widened. They include disclosures of uncertain
wrongs along with the flagrant. Sexual misconduct
charges against Harvey
Weinstein seem pretty certain. But those
against Aziz Ansari[1], for example, are more controversial. A mostly
media-waged fight set Talia Jane against Yelp Inc. Jane wrote an open
letter to Jeremy Stoppelman, CEO of Yelp whose Yelp24 employed her in
customer service. Jane complained about
her low pay. She was promptly fired
although Yelp soon increased salaries for positions like Jane’s.
In most cases the accused proclaim their innocence and dismiss
whistleblowers’ complaints as untrue. That’s
what HomeFirst
said in defense against my complaint.
And when BP Energy recently settled
a False Claims Act suit about overbilling California for natural gas, it asserted
it had done nothing wrong. It agreed to
pay the $102 million for the sake of convenience.
As our complaints multiply, they include more small-time
cases like mine. Some address acts that
are more strictly moral, like not paying employees enough to satisfy them. And behavior that may be gross but seems to
stop short of illegality.
Or they attack the organization with conflicting arguments. On one side stands James
Damore. He
was a Google software engineer when he internally published a
memo criticizing Google’s culture of political correctness. He suggested the gender gap in technology
companies might result not from biases, but from the generally lower capabilities
of women for tech work. He recommended the
company examine its biases in favor of women and diversity in general. This did not go over well, and he was
fired. He
had violated company policy, Google said, when he suggested women have
traits that make them less biologically suited to the work.
On the other side stands Tim
Chevalier, another former Google engineer.
Chevalier felt the company’s internal social networking programs were used
to belittle and harass women, people of color, LGBTQ employees, and other
minorities. Google fired him too for
violating its social norms and creating unacceptable stereotypes.
In his
lawsuit, Damore offers evidence of Google’s intensely PC culture. One piece was communication from Chevalier to
Damore’s co-plaintiff in the suit. And Chevalier’s
lawsuit refers to grief he got for criticizing
Damore’s memo. These are young
men. So they spent no time on Google’s
age discrimination problem. Their biological
and moral arguments might apply equally well to age differences. What a mess of knitted wrongs and
accusations!
A problem with the democratization of whistleblowing stems
from the ambiguity of our small-time complaints. When I asked if HomeFirst
was violating state licensing laws, the CEO’s initial concern was not about
legality. She cared first whether obeying the law would
limit the number of homeless shelter beds.
When she appealed to the board for support, she blew the whistle on me. The State’s
determination letter agreed with HomeFirst: I was not really a
whistleblower. Instead they had outed me
as someone who had hoped to bring the company down.
Debates often focus on whether our complaints are
valid. Did the company intentionally overbill
the government? Did the government
really engage in unlawful surveillance of its citizens? Was a law actually violated, a person
harassed, or a lie told?
Justice is likely to be served better if we look to how power
is used in these situations. Power that
resides primarily with the accused wrongdoer and is employed to quash the
whistleblower. Blocking its violence can
be inconvenient for those used to having their way. Yelp, Google and HomeFirst hoped to cut off
discussion on their terms, and they fired their accusers. Those accused of sexual harassment or worse
too often succeed in switching the conversation. Their accusers are the guilty ones, they say.
Our battles should not be about one side winning or
losing. Solutions that silence the
parties waste an opportunity. Continuing
our discussions is a painful but necessary cost of social life.
