What Were They Thinking? (Part 2)
Some whistleblowers, including Debra
Halbrook and me, see a wrongdoing and disclose it for good legal reasons. Some also have a personal interest in their
complaints. Maybe they weren’t paid
properly or work conditions were unsafe.
Some are lured by the chance of a big
reward.
But for all, our motivations include a mix of legal,
ethical, and personal reasons. Take Dr.
Lori Jespersen, PhD from Argosy University, past professor at Wright Institute, and author.
The California Department of Corrections and Rehabilitation
(CDCR) hired Jespersen in 2008 as a clinical psychologist/clinical case manager. When she moved to the California Medical
Facility in Vacaville in 2009, Jespersen might have known what she was getting
herself into.
The justice system has long been unkind to many, including
those in the LGBTQ community. As a partial remedy, the federal hate-crime law
was expanded
in 2009 to include crimes motivated by the victim’s sexual orientation and
gender identity. Despite the 2003 passage
of the Prison
Rape Elimination Act (PREA), a 2012 survey found
that LGBT inmates were at least 10 times more likely to be sexual victims than
heterosexuals. As a self-identified
lesbian, Jespersen was sensitive to the special
protections LGBTQ prisoners deserve under the Department
of Justice’s 2012 standards.
In California, the prison system was a confirmed failure in serving
the mental health needs of its inmates. In
1990 the CDCR was sued
for providing inadequate mental health care. Following another suit in 2001, system was placed
under federal control in 2006 for continuing to inflict cruel and unusual punishment[1].
Still, Jespersen said she was happy in her job until July
2014. That was when she saw three CDCR
employees use Facebook to out a transgender prisoner she was treating. They broke HIPAA
privacy rules, she thought. She complained
without effect. In December she
complained again, this time about the hostile environment created by the three
employees, who had not been disciplined.
May 2015 was a tough month for Jespersen. She protested more about the HIPAA breach. A CDCR trainer told staff to use respectful
pronouns when referring to transgender prisoners. Some attendees rolled their eyes, and the
trainer said, I know, I know, but you want to get paid, don’t you? Jespersen complained to her boss that a CDCR
employee had disclosed her sexual orientation.
Then she was transferred out of her Crisis Bed Unit.
In August she objected that CDCR staff forced female transgender
prisoners to show their breasts and buttocks.
In December she charged that an officer forced a transgender prisoner to
submit to a strip search in order to recover her property.
The retaliations increased.
Officer Tia McDaniels locked her in the correctional unit alone and
without a safety alarm with a prisoner serving multiple life sentences for
rape.
March 2016 was another tough month. Jespersen reported that a gay prisoner was assaulted
by a prisoner who had previously attacked other LGBTQ prisoners. CDCR staff facilitated the assault by not
locking the shower door. A transgender
prisoner was mocked by an officer who referred to her using male pronouns. The prisoner, Jespersen reported, was denied her
right to complain. McDaniels locked her alone
in the unit again, this time with two prisoners.
In April and May McDaniels encouraged three groups of
prisoners to assault her. Jespersen told
her boss and her union rep she was afraid for her safety. And she filed an EEO complaint. While out on a stress leave, her boss
encouraged her to return. She said Jespersen
could work in a different unit while McDaniels was being investigated. When she returned from leave, she was
demoted, removed from direct patient care, and assigned secretarial tasks. Then CDCR assigned McDaniels to her new unit.
Although McDaniels has since been shifted to the main mental
health unit, Jespersen is still barred from direct patient care. Mediations with the California Department of
Fair Employment and Housing and the EEOC failed. Jespersen is suing the CDCR and its officers. She lists several counts, including a hostile
work environment, retaliation, interference with her medical leave, and violation
of whistleblower protection.
As Halbrook and I did, Jespersen saw legal issues: she
thought CDCR staff broke HIPAA and PREA rules.
But she also saw moral misconduct to which she was especially sensitive as
a lesbian who counsels
transgender individuals.
Jespersen’s
complaints are as difficult for an outsider to evaluate as any other
whistleblowers’ are. The CDCR figured,
for example, that its employees’ misuse of personal pronouns was not a flagrant
wrong. As a wrong, it was on par with
HomeFirst’s failure to have the required food
handler cards. Still, it was a
wrong.
Like Halbrook and me, Jespersen suffered retaliations. But it’s easy to imagine hers were unrelenting
in a brutal environment. Certainly her physical
risk far exceeded what I and most other whistleblowers have experienced.
The dangers of whistleblowing tempt some to suppose we must have
no
choice but to act as we do. Or that
we could
not live with ourselves if we stay quiet.
After interviewing many whistleblowers, C. Fred Alford decided we are
driven by a “choiceless choice”[2]. These understandings are incomplete, though. First, we observe misdeeds throughout our lives
without feeling forced to stand up. What
leads us to object on this occasion? Second,
the obligatory hero rationale, like much of moral reasoning[3],
is concocted after we act. In our
justifications we conveniently leave out the less appealing drivers of our
actions.
The whistleblower’s courage and persistence don’t stand on a
thin reed of ethical reasoning. Instead a
rich base of motivations supports our actions.
The mix includes how we were raised, our ethical training, our desire to
get rich or just even, our understanding of the wrongs, our sympathies for the
victims, and more.
What Jespersen and others were thinking when they became
whistleblowers has little lasting significance.
They are characters whose complexity makes them interesting and valuable.
[1]
Per its settlement under Plata v.
Schwarzenegger and Coleman v.
Schwarzenegger. The conclusion
was affirmed by the U.S.
Supreme Court in 2011.
[2] Alford, C. Fred. “Whistle-Blower
Narratives: The Experience of Choiceless Choice.” Social Research 74.1 (Spring 2007): 223-248. See also Alford, Charles Frederick. “What
Makes Whistleblowers So Threatening? Comment on ‘Cultures of Silence and
Cultures of Voice: The Role of Whistleblowing in Healthcare Organisations.” International Journal of Health Policy and
Management. 5.1 (2016): 71-73
[3] Haidt, Jonathan. “The Emotional Dog and Its
Rational Tail: A Social Intuitionist Approach to Moral Judgment.” Psychological
Review 108.4 (2001): 814-834
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