On July 29, 2009 the Senate Committee on Homeland Security and Governmental Affairs unanimously reported out of committee S. 372, the Whistleblower Protection Enhancement Act of 2009. Unfortunately, this bill contains many significant differences from the House Bill (H.R. 1507), which the National Whistleblowers Center (NWC) fully supports.
This blog post is the second in a series of twelve, examining specific weaknesses in the Senate Bill. Each installment examines a crucial issue of whistleblower rights compromised by the Senate’s version of the bill.
II. ADVERSE ACTIONS REVISTED
The Senate Bill goes out of its way to reverse gains whistleblowers have won in the U.S. Supreme Court. It returns whistleblowers to the days when an employee had to demonstrate a certain level of harm or damages to obtain whistleblower protection.
For years the lower courts debated what level of adverse action was necessary to permit an employee to file a retaliation case in federal court. Some courts required material adverse actions – such as a termination. Other courts looked to the purposes behind the enactment of anti-retaliation laws, and permitted filing claims in court for adverse actions that did not result in actual loss of salary or benefits.
The unanimous U.S. Supreme Court decision in Burlington Northern & Santa Fe Railway Co. v. Sheila White, 548 U.S. 53 (2006) finally resolved this long-standing dispute. A whistleblower could file a claim in court even if they suffered what might be called a less significant adverse action. Why? The Court correctly understood that smaller adverse actions still have significant impacts on a person’s career. Employees who faced transfers to less desirable jobs, whose performance reviews suffered or who were harassed at work could have their careers severely damaged, even when they suffered no reduction in salary. Moreover, permitting employees who engaged in protected activities to suffer any retaliation on the job has a major chilling effect on other employees and discourages anyone from making protected disclosures.
The court case was a major victory for all whistleblowers. We thought the battle was over, that is until we read S. 372.
The Senate Bill statutorily overturns the unanimous Supreme Court decision and again creates an artificial differentiation between the level of harassment and the right of an employee to have his or her case heard in court. It limits who can file in federal court. See Section 117(a)(k)(4)(A)(i)(I).
Under S. 372 only employees who suffer what is called a major personnel action including being suspended for 14 days or more are allowed to file a claim in federal court. Employees who suffer severe harassment or whose careers are stalled by bad performance reviews have no recourse in court. Common retaliatory tactics such as transferring employees to more demeaning work, forcing employees to undergo intrusive psychological testing, and stripping someone of all meaningful work will now become even more common since employees will have no way to fight it in court.
The Supreme Court got it right in Burlington. Employee action that “dissuades” a reasonable employee from engaging in protected activities is an adverse action for which an employee should be able go to court and have the claim heard in a full and fair manner.
This provision in S. 372 is extremely harmful to whistleblowers. It would result in the majority of federal employees being blocked from access to federal court proceedings. We strongly oppose this reactionary attempt to overturn the Supreme Court and the NWC cannot support any “so-called” whistleblower bill, which contains this provision.