Not Becoming a Whistleblower (Part 2)

Not Becoming a Whistleblower (Part 2)

We love an ideal form[1] of whistleblowing, not the reality.  According that ideal, those who blow the whistle are moral actors.  We all benefit from their acts because fraud and other lawless behavior are reduced.  Whistleblowers are protected against retaliation by their employers.  Offending organizations are punished.  The process of fair investigation, analysis, and conclusion proceeds promptly and reasonably.

A few writers, including C. Fred Alford (2002), caution that this ideal is far from realistic.  Alford argued that organizations are predatory and will always make their whistleblowers’ lives miserable.  And whistleblowers are not the moral beacons they pretend, he said.  Moreover, whistleblowers will pay a high price, sometimes sacrificing their lives to save ours. 

The ideal, even if false, serves a socially useful purpose.  It gets people to speak up.  And despite all warnings, the gap between ideal and real may be narrow enough to work for society. 

Some folks do make their disclosures on moral grounds even if Alford calls them moral narcissists.  The public sometimes gains from the correction of bad behavior.  Small changes, at least, followed Edward Snowden’s massive disclosures, for example.  Even if they are not always protected, some are fairly compensated for retaliation they suffer.  Take Sanford Wadler, former General Counsel at Bio-Rad Industries.  A California jury awarded him nearly $15 million in 2017 because he was fired for raising concerns over violations of federal laws.

After whistleblowing started up five decades ago, we came to recognize that all the parties – discloser, organization, and legal enforcement – play in a more complicated setting than the ideal assumes.  We operate with opposing values, understandings of fact and legal precedent, emotions, and authorities.  A fair conclusion may be displaced by one that is expedient or responds to influence and bias.  In this environment, whistleblowing may not be the right approach for many who observe wrongdoing.

A whistleblower and others helped push Theranos toward dissolution after years of fraud by the company’s CEO Christine Holmes and her accomplices.  In John Carreyrou’s telling, Theranos’ collapse resulted largely from the most basic of business problems: its blood testing device didn’t work.  As at Enron, fraud entered the picture when management tried to keep the struggling operation from sinking.  Holmes, looking sharp in her Steve Jobs black mock turtleneck, pitched her deception to the U.S. Army, Walgreens, Safeway, and the FDA.  She was impressive, but she flopped.

Tyler Shultz was Theranos’ traditional whistleblower.  Shultz suspected the company was misrepresenting lab results.  He took his concern to Holmes who brushed him off.  He spoke to his grandfather, George Shultz, who was a Theranos board member and also a former Secretary of State, former Treasury Secretary, and former Labor Secretary.  The elder Shultz assured his grandson he was mistaken.  Tyler eventually reported his suspicions to the New York State Department of Health.  He resigned.  Theranos unleashed powerhouse attorney David Boies to sue him.

The company had other employees – 10 notable ones by Carreyrou’s count – who responded to the obvious craziness at Theranos by quitting.  They withdrew their technical support for its fraud and didn’t get sued.  They acted ethically without becoming whistleblowers.

Jack Paulson at Google is another corporate dissident.  Google is reported to be developing a censored search machine for the Chinese market.  Although it complied with Chinese law, the project offended Paulson.  So he quit rather than support behavior that offended his ethics.

Another approach: on September 5, 2018 the New York Times published an anonymous op-ed by a senior official in the Trump administration.  The author claimed to be part of an internal group that keeps Trump from implementing dangerous parts of his agenda.  The group’s members believe they are acting nobly, the author says.  They are protecting America’s democratic institutions.

Our traditional view of whistleblowing has always been wrong.  The gap between ideal and reality had seemed small enough not to matter.  When the gap widened, the system was patched.  Whistleblower protection laws were introduced to cover new employers.  Systems were developed to collect complaints anonymously.  Governing bodies called for new reports.  Rewards were offered.  More attorneys were needed.  Organizations introduced ways and still more ways to improve whistleblowing.  I even offered my own suggestions.

These are fixes made chiefly by legislators and senior managers of organizations.  The examples of Theranos employees, Paulson, and the anonymous op-ed writer show individuals acting on their own.  They resist misbehaving organizations as people did before our whistleblowing complex was constructed.

But merely quitting, as Theranos employees did, doesn’t seem strenuous enough to make a difference in every case.  If Snowden had simply quit his Booz Allen Hamilton job in protest against NSA practices, government surveillance would have continued secretly and unchecked.

And wide-spread rebellion of the sort described by the NYT op-ed writer would lead to chaos.  We could never trust anyone to do what they promise.  The prospect of anarchy might make us yearn for Professor Bok’s faith in loyalty to the organization and one’s colleagues[2] even if we abandon our disclosures.

Whistleblowing didn’t work for me.  I lost my job at HomeFirst Services and accomplished nothing.  What else could I have done?  Sabotage would have been easily detected and punished with a vengeance.  Quitting is exactly what HomeFirst’s CEO wanted me to do.  Quitting after I gathered documentation to prove the violations and performing my whistleblowing from outside was possible.  But it would have meant giving up my salary earlier than I planned.  Greed trips many whistleblowers. 

The troubling gap between idealistic whistleblowing and reality may be unbridgeable.  It’s nonsensical to expect that one person could defeat an organization representing hundreds or thousands of people.  We may have to accept that the handling of our disclosures will always be flawed. 

The ideal is so simple.  But an array of clashing motives drive us.  When we blow a whistle, we are certain we are right in our claims but also fearful we’ve got it wrong.  We both understand and disdain those who do not support us.  We want to win even though no win will satisfy us. 

If we cannot handle these breaks from the ideal, we should probably not consider becoming whistleblowers.  We should find an easier path.

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[1] Cf. Appiah, Kwame Anthony.  As If: Idealization and Ideals.  Cambridge, Mass.: Harvard University Press.  2017.

[2] Bok, Sissela.  “Whistleblowing and Professional Responsibilities.” In Ethics Teaching in Higher Education. Daniel Callahan and Sissela Bok (eds.).  New York and London: Plenum Press. 1980. 277-295.