“People are dying, Scott, you’ve got document after document here telling you why, and you haven’t said one word. I wanna know. . . . How the hell you sleep at night?”
Erin Brockovich (2000)

In the movies, whistleblowers are usually portrayed as courageous individuals willing to brave serious harm to their reputation, livelihood, and even their lives, to speak truth to corruption or other grave misconduct. From All the President’s Men to Erin Brockovich, we romanticize these characters as avatars of integrity. But the harsh truth is that whistleblowers rarely get a Hollywood ending, in part because of the very language we use to describe their actions.

MURRAY V UBS SECURITIES, LLC

On February 8, the U.S. Supreme Court ruled that UBS had to pay around $900,000 to Trevor Murray, a former analyst who claimed he was fired after refusing to yield to pressure to produce “illegal” and “unethical” reports that supported UBS business strategies. Murray complained to his supervisor in December 2011 and January 2012. About a month after that, UBS eliminated his job, which prompted Murray’s lawsuit. His legal victory at the Supreme Court doesn’t just vindicate his experience, but it significantly strengthens the whistleblower protection provisions of Sarbanes-Oxley, which prohibit companies from retaliating against whistleblowers. Thanks to this recent Supreme Court decision, ex-employees in Murray’s position no longer have to prove that their former employers reacted with “retaliatory intent” when they fired them.

This brings U.S. law more in line with the European Union, which doesn’t just specifically forbid whistleblower retaliation, it goes one step further than Sarbanes-Oxley and requires employers to prove that they didn’t retaliate when letting whistleblowers go. Perhaps it is this evolution in whistleblower protection that prompted powerful U.S. trade groups like the U.S. Chamber of Commerce, the Securities Industry and Financial Markets Association (SIFMA), Airlines for America, and the American Association of Railroads to line up behind UBS in this matter, claiming that expanded whistleblower protection would inundate employers with meritless claims.

For anyone familiar with what actually happens to people when they speak up about workplace misconduct, however, the notion that anyone would do it frivolously is simply ridiculous. Indeed, there are state, federal, and international laws prohibiting whistleblower retaliation. But whistleblowers also routinely face ostracization by their peers, lost promotion opportunities, workplace bullying, and more. It may not rise to the level of Japan’s infamous “banishment rooms,” but spiteful employers can, have, and do carry out all kinds of soft retaliation against employees deemed disloyal for having the integrity to raise their hand when something is amiss—instead of acknowledging the reality. An employee raising an issue early is the best way to resolve problems before they become a four-alarm reputational fire.

FOUR STEPS TO COMBAT WORKPLACE RETALIATION

This may all sound dire, but there are actions that organizations can take to avoid becoming the next headline and court case.

• Develop a formal anti-retaliation policy. This sounds basic, but it all begins here. Does your organization formally prohibit retaliatory behavior? Does it clearly describe how to report suspected retaliation? Is it written in language that all employees can understand? Companies that lead the way in this area establish build meaningful policy language around this, and back that up with properly resourced ethics and compliance departments that work closely with HR to ensure that employees feel empowered to speak up when they see that something is wrong, secure in the knowledge that they will not be overtly or covertly punished for their integrity.
• Train your managers. Managers are your culture’s linchpin. They’re the tone setters, and those best-positioned to prevent retaliation in their teams. Even at organizations with sophisticated and well-advertised employee hotlines, the reality is that employees usually first raise concerns with their managers before elevating matters. If your people managers are not trained to prevent retaliation, then the gap to allow for retaliation will only widen. According to Ethisphere’s research, the most common topics covered in non-retaliation training for managers include:

• The importance of not treating reporters differently (94%)
• The need to avoid suspensions, terms, or layoffs (90%)
• The need to avoid potentially retaliatory transfers or changes (88%)
• Viewing reporting as a positive opportunity to address an issue (83%)
• Observation to prevent retaliation from co-workers (77%)

Equipping managers well in advance will pay dividends in protecting your organization, your culture, your reporters, and your managers themselves.

• Develop a culture of integrity. Many companies that have been found guilty of retaliating against whistleblowers also had formal policies forbidding such behavior. These policies are only as good as the culture they are a part of, and they can’t exist in a vacuum. Culture can be measured and benchmarked, and when you have hard data around how well your culture stacks up against your peers and industry best practices, then you have a sense of just how much your organization means it when it says it won’t retaliate. But when it comes to preventing retaliation, the first and best defense is to encourage speaking up. Reporting isn’t an act of disloyalty. It is an act of integrity.
• Stop calling it whistleblowing. Depending on where you look, the origins of the term whistleblower either refer to a police officer blowing a whistle to halt traffic, a referee blowing a whistle to stop play, or a train engineer blowing a whistle warning people to get out of the way. Whatever the origin, it all comes down to a kind of necessary evil: a shrill, unwelcome, and potentially hurtful noise that interrupts business as usual. Even when calling out truly criminal and reprehensible behavior, “whistleblowing” is still often equated with cynical tattling.

When we couch speak-up activity in this way, is it any wonder that it is so misunderstood, and that those who do it often face retaliation for it? Maybe we should call employees with the integrity to call out misconduct upstanders instead. After all, the words we use to describe ourselves matter. And those among us who live up to the expectations of business integrity in the most meaningful way possible deserve to be addressed properly: as model employees.

Erica Salmon Byrne is chief strategy officer and executive chair for Ethisphere.