Women and Whistleblowing: Exploring Gender Effects in Policy Design

By Tilton, Clare | Columbia Journal of Gender and Law, Winter 2018 | Go to article overview

Women and Whistleblowing: Exploring Gender Effects in Policy Design


Tilton, Clare, Columbia Journal of Gender and Law


Abstract

Laws that incentivize employees to blow the whistle when they perceive a financial risk and protect them from retaliation have sharply increased in popularity and have even become commonplace at the state level for fraud related to government money. Dodd-Frank codified a similar kind of protection for whistleblowers who report private-sector fraud. This Note suggests that states, especially New York, have an opportunity to propose new financial fraud whistleblower legislation in response to the Trump administration s efforts to reduce the federal government's active regulatory role in the financial sector. However, the prevalence and potential of such legislation should inspire a closer look at how legal mechanisms target and encourage participation across the employee population. Any program that seeks to encourage participation within an existing context, such as the financial services workplace, risks entrenching bias and inequality if it fails to consider the differential effects of its design across different demographics.

This Note therefore addresses whistleblower laws ' implications for women employees' participation in whistleblowing when they observe financial services sector-based misconduct. It reviews existing research regarding women's participation (1) in whistleblowing and considers how that evidence should shape choices of policymakers who seek to encourage employee reporting while still fostering workplace environments and regulatory structures that value and benefit from women's voices.

INTRODUCTION

"Whistleblowing," or an employee's act of reporting misconduct when he or she observes it within an organization, is the result of a complicated calculation on the reporting employee's part. The whistleblower makes the choice to "change, rather than escape from, an objectionable state of affairs," (2) and that will only happen when an employee decides that the costs that come with reporting wrongdoing do not outweigh the benefits. (3)

This Note considers both internal reporting (such as to a company hotline or a manager) and external reporting (such as to the government or a media outlet) types of whistleblowing. The nature and effects, as well as the moral status and attendant risks, of these two kinds of reporting diverge sharply. However, to the extent that existing or potential policies attempt to encourage compliance through voluntary private action, the frequency of both these kinds of action speaks to policies' successes.

Furthermore, the effects of a law like the federal Dodd-Frank Act ("Dodd-Frank") reach beyond the reporting systems that it structures directly--that is, formal reporting to a government agency. Rather, an important suggestion based on the academic literature is that we should expect laws that explicitly relate only to external reporting to increase the moral salience of whistleblowing and therefore impact a broader range of reporting behaviors. Therefore, I adopt an expansive whistleblower definition: "organization members ... who disclose illegal, immoral, or illegitimate practices ... to [those] who may be able to effect action," (4) regardless of where the "persons or organizations" who receive the reports sit.

Whether an individual makes an internal or an external report, regulation and law affect the calculation that leads the whistleblower to reach out and report conduct. Laws can provide protection from retaliation, assurances of confidentiality, or monetary incentives. In fact, state and federal False Claims Act (FCA) legislation, (5) as well as Dodd-Frank, (6) have used monetary incentives and inspired controversy among commentators for doing so. This Note contemplates the potential effectiveness of a mini Dodd-Frank that implements the same policies on a statewide basis, which was a model the New York State Attorney General alluded to developing in February 2015. (7) Financial incentives for whistleblowers therefore figure particularly prominently in the following analysis. …

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