BUSINESS & PROFESSIONAL ETHICS JOURNAL, VOL. 10, NO.

I
Can Whistleblowing Be
FULLY Legitimated?
A Theoretical Discussion
Natalie Dandekar
Whistleblowing as a phenomenon seems puzzling. The whistleblower
presumably acts to bring a wrongful practice to public attention so that
those with power are enabled to correct the situation. Bok observes,
"Given the indispensable services performed by so many whistleblowers,
strong public support is often merited.,,1 Yet Myron and Penina
Glazer
2
report that in over two thirds of the sixty-four cases they
documented whistleblowers suffered severe negative consequences.
3
When a social practice issues in consequences which marginalize or
endanger the agent, when the agent may become a pariah for
"committing the truth" it is impossible to claim that practice is regarded
as fully legitimate. I am interested in exploring the paradox. Why, in
the case of whistleblowing, does committing truth result in punitive
sanctions? How might W(;, as a society, increase the probability that
this virtue is rewarded rather than punished? Why have we been so
slow to do just that?
To answer these questions, I consider all four topics Duska
4
considers central to a theoretical discussion of whistleblowing, (1)
definition;5 (2) whether and when whistleblowing is permissible; or (3)
obligatory; and (4) appropriate mechanisms for institutionalizing
whistleblowing. In Section I, I discuss two important recent defini-
tions of whistieblowing, concluding that whistleblowing is a specific type
of action: going public with privileged information about a legitimate
organization in order to prevent non-trivial public harm. In Section 2,
I explore the moral ambiguity inherent in whistleblowing and the
complications this affords to Goldberg's persuasive case for seeing a
case of potential whistlcblowing as either inappropriate or obligatory.6
90 Business & Professional Ethics foumal
In Section 3, citing studies which show that whistleblowers often suffer
outrageous costs, I explore legitimation factors which might safeguard
the morally responsible whistleblower.
1. Whistleblowing defined
Two recent books about whistleblowing differ in their definition of the
term. For the Glazers, whistleblowing is defined by Norman Bowie's
six ideal requirements:
B1. the act stems from appropriate moral motives of
preventing unnecessary harm to others;
B2. the whistleblower uses all available internal procedures
for rectifying the problematic behavior before public
disclosure (except when special circumstances preclude
this);
B3. the whistleblower has evidence that would persuade a
reasonable person;
B4. the whistleblower perceives serious danger that can
result from the violation;
B5. the whistleblower acts in accordance with his or her
responsibilities for avoiding/exposing moral violations;
and
B6. the whistleblower's action has some reasonable chance
of success.
7
In contrast, Deborah Johnson, writing as a consultant for an NSF
project on whistleblowing research
8
concluded that a fully defined case
of whistleblowing occurs when
J1. an individual performs an action or series of actions
intended to make information public;
J2. the information is made a matter of public record;
13. the information is about possible or actual nontrivial
wrongdoing in an organization; and
J4. the individual who performs the action is a member or
former member of the organization.
9
Can Whistleblowing Be FULLY Legitimated? 91
As Heacock and McGee point out, managers define whistleblowing to
include going outside the normal chain of command even if not
actually going public with damaging information. Thus, whistle-
blowing can include internal reporting of wrongdoing in or by the
. . 10 Lk D . 11 I 11 d h
orgamzatIon. I e aVIS, am WI mg to see gomg OutSI e t e
normal chain of command as a form of going pUblic.
12
The definitions offered by Johnson and Bowie differ with respect
to whether a whistleblower's motivation should be included (B1),
whether whistleblowing will succeed (B6), and whether the
whistleblower is a member or former member of the organization (J4).
Johnson's focus on action, exclusive of any reference to the whistle-
blower's motivation seems preferable since, as Johnson observes,
reasons for acting, the degree of certainty that the
whistleblower has about the wrongdoing and whether or not
the whistle blower has tried to remedy the wrongdoing by
internal mechanisms ... will bear on our understanding of
when whistleblowing is permissible and when it is morally
obligatory, but these factors should not be confused with
definitional features.
13
An additional reason for adopting Johnson's perspective arises when
one considers a case of mixed motives. The Wall Street ]oumal
14
describes a former GE employee who spoke about time card fraud in
a GE sponsored assertiveness training session. For six years afterward,
Mr. Gravitt
confronted executives with evidence ... (until he) was fired
(or laid off) ... (He also) testified before the House
subcommittee about mischarging as a way of life at GE.
Now he hopes to win a bountiful settlement, so "people will know they
can do something to correct what isn't right."
Mr. Gravitt meets Johnson's definitional criteria though not those
of Bowie. Since, it seems wrong to dismiss his case simply because he
might realize monetary gain, it seems appropriate to dismiss motivation
as a definitional issue. The action--going public with possible or actual
92 Business & Professional Ethics loumal
nontrivial wrongdoing--seems the more appropriate focus for definition.
There are however two points on which I think Johnson's
definition could be improved. First, Johnson's stipUlation that
"whistleblowing always takes place in the context of an organiza-
tion,,15 should be amended to include the point that the wrongdoers be
persons of presumed respectability and the organization a legitimate
one. This seems a little noted aspect of whistleblowing, but as with
Gravitt's case where the reporter notes GE "prides itself on a favorable
public image," presumptive organizational respectability consistently
characterizes whistleblowers' self-reports. When they suspect wrongful
practices, they feel surprise. Knowing the organization values its good
reputation, the whistleblower sees the wrongful practice as a sign of
deterioration but remediable.
16
Amazed that higher management
avoids imposing remedies to restore reputable practice, the
whistkblower is moved to protest.
Second, where Johnson stipulates the actor is a member or former
member of the organization, I think the criterion should be broadened.
The whistleblower must have privileged access and be trusted to
maintain the confidentiality of this information. But not every
privileged insider must be a member or former member of the
organization. A rough survey of the ways whistleblowers have obtained
incriminating information shows privileged access can result from six
distinct relationships.17
Most often the whistleblower is a member jformer member
trusted with privileged information. Yet within the category of trusted
employee, distinctions can be usefully drawn isolating four
subcategories.
First, the whistleblower may have earned access to incriminating
information through quite legal acts of loyalty. For example, when he
brought charges against Senator Thomas Dodd, James Boyd was
Dodd's chief aide and had worked devotedly on Senator Dodd's behalf
for eleven years.
A second pattern involves a worker who colludes with the criminal
practice. Thus, Dr. Arthur Console, medical director of Squibb,
pressured by profit oriented superiors, pushed others to certify drugs
they had not fully tested. After changinfi careers, he conscientiously
reported the ongoing practice at Squibb. 8
Can W1zistleb/owing Be FULLY Legitimated? 93
Third, a worker afraid to face reprisals may share data with a less
obviously assailable colleague. A staff psychologist at the Veterans
Administration Hospital in Leavenworth, Kansas learned that a staff
physician was conducting a drug-testing project using patients who
could suffer harm from the drug's side effects. Believing the opinion
of a trained physician would carry more weight with hospital
administrators, he asked Dr. Mary McAnaw, then chief of surgery at
the hospital to accompany him when he discussed his concerns. In this
way she learned of the hospital administration's complicity and
eventually blew the whistle.
19
Fourth, company arrogance may lead to information about
wrongful practices being available to all employees, though the
company hides these practices from the public. Karen Silkwood seems
to have worked for such an arrogantly abusive corporation.
However my rough survey also reveals two patterns by which a
whistlcblower may learn of an incriminating practice without being a
member of an organization. Fifth, someone who is not a member of
the organization, may be given access to their records. Thus, Dr. Carl
Johnson, a public health physician established the probability of
wrongful practices at the Rocky Flats nuclear weapons plants.
2o
The
company never gave him direct access to specifically incriminating
information
21
but accepted that he had a right to acquire health-
related data about their employees. In another such instance, Thomas
Applegate, a private detective "hired by Cincinnati Gas and Electric to
investigate timecard fraud among workers at the construction site of
the Zimmer nuclear power plant in Ohio ... inadvertently uncovered
much more serious construction problems.,,22 After utility officials
ignored his warnings, he alerted the NRC. When no official body would
pay attention, he sought help from GAP, a public interest watchdog
group,23 which forced additional investigations uncovering such gross
violations the plant was canceJled.
24
Sixth, the whistleblower may be a relative of the victim of
wrongful practices, even if neither are members of the supposedly
respectable organization. For example, in cases of nursing home
abuse, drugged/senile patients are in no position to bring charges of
wrongdoing. But some relatives have done so on their behalf. Mental
patients too require someone else act e.g. to prevent fiscally wasteful
94 Business & Professional Ethics Journal
practices, since testimony of the mentally deranged is unlikely to be
believed trustworthy. Thus, a concerned relative may become a
whistleblower on a wrongful organizational practice even when
generally grateful for the care provided by the organization to the
needy relative.
Gaining access to information, the whistleblower must be an
insider in some sense, but it seems too restrictive to require the
whistleblower be a member/former member of the organization
accused of wrongdoing. Of the six distinct patterns of acquiring
privileged information, two--the clue follower, who is not made directly
privy to information about a wrongful practice but is given an opportu-
nity to obtain clues, and the caring relative who, like the clue follower,
discerns the outlines of a wrongful practice by observation--find
themselves in possession of information because both have been trusted
with privileged access though they are not members of the
organi/.ation. Yet even these, when they go public, in some sense
betray the trust which led to confidentiality.
II. The Moral Ambiguity of Whistleblowing
The whistleblower's act is intrinsically liable to moral ambiguity
because whistleblowing (a) involves betrayal of confidentiality and (b)
the organization is presumptively legitimate. Because the organization
accused is legitimate and so presumably staffed by persons of at least
ordinary moral probity, whistleblowing shares the moral ambiguity of
insubordinate accusations which reject the judgement of a majority of
normally competent moral individuals who find a dubious practice at
least minimally acceptable.
In a case of price-fIXing those charged include some "described
as having high moral character .... ,,25 A sympathctic analysis of their
motivation showed these morally respectable perpetrators generally
practiced some form of self-deception, excusing their wrongdoing as
only trivially wrong, or offset by some non-trivial good. Knowing
pricefixing to be illegal, some claimed that it helps stabilize the market,
or serves the corporate good, ends which outweigh illegality. Others
claimed the law was wrong, and pricefixing should not be illega1.
26
Can Whist/eblowing Be FULLY Legitimated? 95
When respectable persons go along, their behavior suggests that
the apparently wrongful practice is not thoroughly vicious. This
undercuts the impetus to whistleblowing, and may also explain some of
the anger that those who go along feel toward the whistleblower who
won't.
The premise that private vices produce public goods, as in Adam
Smith's theoretical conclusion that individual greed works through an
Invisible Hand to produce the common welfare, may also promote
hanging back in this respect. When respectable persons, obviously
competent to engage in moral reasoning, have chosen to go along, an
onlooker may wonder if this wrong nonetheless serves the common
welfare in the long run, with whistleblowing morally compromised by
that possibility.
Core elements of whistleblowing foster a condition of moral
ambiguity. The whistleblower perceives the wrongful practice as a
source of non-trivial public harm and the effort to bring the practice to
public attention as serving the public interest. But from the perspective
of ordinary citizens, the organization accused is respectable, so there
is some doubt about the degree to which the wrongful practice will
harm the public. Moreover, the person bringing the charge is betraying
a trust on behalf of protecting the public interest. Paradoxically the
one who betrays a trust claims to be more trustworthy than those who
remain loyal to an apparently respectable corporation.
Apart from these sources of moral ambiguity, whistleblowing is
liable to two other kinds of moral defect. The first stems from the
motivation and character of the whistleblower.
(T)he disappointed, the incompetent, the malicious and the
paranoid all too often leap to accusations in public . . .
(while) ideological persecution throughout the world
traditionally relies on insiders willing to inform on their
colleagues or even on their family members.
27
HUAC operated in an environment characterized by two factors: the
communist party was illegal and ordinary citizens feared that
communism might lead to society-wide harm. Thus those who chose
to inform on communists acted in accordance with the definition of
96 Bllsiness & Professional Ethics loumal
whistleblowing suggested above: bringing unlawful practices presumed
harmful to the general public to the attention of those in a position to
protect the public against the continuance of the practice. Even under
Bowie's idealistic description of whistJeblowing, the issue persists. For
during that period of public hysteria, some testimony was motivated by
a concern for preventing the spread of communism. However, the
illegality reported and the harm feared seem less dangerous to the
public than the practice of reporting and the climate thus engendered.
Witchhunts illustrate the necessity to limit the powers of a wrongly
aroused public opinion.
As Johnson noticed, once whistleblowing is defined, it remains
worthwhile to discover under what circumstances it is permissible and
when it is morally obligatory.28 It may also be worth exploring the
conditions under which whistleblowing is simply not the morally correct
response to a situation. DeGeorge
29
suggests whistleblowing is
pennissible when
a. a practice or product does or will cause serious harm to
individuals or society at large;
b. the charge of wrongdoing has been brought to the
attention of immediate superiors; and
c. no appropriate action has been taken to remedy the
wrongdoing.
If, in addition
d. there is documentation of the potentially harmful
practice or defect; and
e. there is good reason to believe public disclosure will
avoid the present or prevent similar future wrongdoing,
then according to DeGeorge whistleblowing becomes increasingly
obligatory. But, since it is common knowledge that whistleblowers
frequently suffer extreme retaliation, De George concludes that
whistleblowing is to be understood as morally permissible, rather than
obligatory.3D Against this, Goldberg convincingly argues that if
employees are to have a right, then they must be protected from
reprisals in exercising the right. If conditions (a) through (e) are met
and (d) and (e) are unavailable so too is the rightY It follows that
some whistleblowing is obligatory. So, it is more than ever important
to distinguish situations in which it does not pander to the wrongful
Call Whistleblowing Be FULLY Legitimated? 97
arousal of public opinion or witchhunting. DeGeorge's conditions,
unfortunately compatible with anti-communist witchhunts, need
supplementation. Legitimate whistleblowing must be limited to cases
where the wrongfulness ascribed is not the product of emotional
d
. . I" . d' 32
IstortIOn, ratIOna IzatJon, or preJu Ice.
Whistleblowing is a morally ambiguous activity on a complex
concatenation of grounds: it necessarily involves a betrayal of trust on
behalf of a public interest which itself is on some occasions moralJy
ambiguous; it indicts otherwise morally competent individuals and
organizations concerned with being perceived as legitimate; sometimes
it arouses public opinion, a frequently contaminated process.
Understandably, whistle blowers are not always perceived as moral
heros.
Nonetheless when an outsider--an investigative reporter,or a
political opponent, or a lawyer on behalf of a defendent--proves a
corporation or government bureaucracy is wasting public funds, or
endangering the lives of those who rely upon their integrity, the
exposer reaps social rewards. Reporters enhance a valued reputation
for sleuthing. Political opponents generally realize gains from making
a case against corruption. Lawyers earn money and respect for success
in prosecuting wrongdoing.
However, privileged insiders do best to serve as valuable but
anonymous informants for outsiders. For if identified, they suffer
outrageous costs. Once the charge becomes a threat to some superior,
whistleblowers risk retaliation. Westin
33
suggests every whistleblower
suffers loss of reputation. Supervisors redescribe them as disgruntled
troublemakers, people who make an issue out of nothing, self-serving
publicity seekers or troubled persons who distort and misinterpret
situations due to their own psychological imbalance and irrationality.34
Yet character assassination barely begins to describe the
consequences of submitLing well-founded important alerts, serving to
prevent harm in obvious ways. Some who work in private industry are
fired, even black-listed so they cannot continue in their profession. Of
sixty four, the Glazers found forty one lost their jobs; twenty eight
suffered long periods of idleness, and eighteen of these changed careers
entirely. A " ... career switch usually meant ... a reduction in their
standard of living ... or a painful realization that closure was still
98 Business & Professional Ethics Joumal
beyond their farthest reach.,,35 Others suffered transfer with prejudice,
or demotion. Staff were transferred away. Letters of recommendation
subtly or overtly mentioned the trouble caused by this employee's
actions. When possible, the letter attacked professional competence
and impugned professional judgement.
Even when evidence entirely supports the rightness of
whistleblowing and the public benefit accruing therefrom,
whistleblowers may find themselves unemployable in their chosen
fields. Dr. Carl Johnson, after alerting the public to negligent practices
at Rocky Flats nuclear weapons plants, had been "horribly mistreated
and discredited" for many years, only finding rehabilitation after
death?6
As mentioned earlier, other employees often feel that with respect
to loyalty, they are morally superior. They are loyal. The
whistleblower is disloyal. For this, other employees may shun, vilify, or
physically attack whistleblowers?7 Death threats may be aimed at the
whistleblower and her family?8
Analysis shows whistleblowing is morally ambiguous. It is a
betrayal of trust, and an accusation against a respectable person,
corporate or natural. But when legitimate, it is also morally obligatory.
So, the original puzzle remains: loO often praiseworthy whistleblowing,
deserving societal reward, results in severe social penalties for the
whistleblower. As one writer put it, "It's a hell of a commentary on
our contemporary society when you must ... become an insolvent
pariah ... to live up to your own ethical standards bJg 'committing the
truth' and exercising your First Amendment rights." 9
Where whistleblowing is a legitimate, responsible, morally
obligatory aelion, this must be remedied. But how?
III. Safeguarding Legitimate U'hist/eblowing
In the early 1970s one who brought a charge of sexual harassment
suffered character assassination and reprisals from more "loyal"
employees, just as other whistleblowers of that period did. But, by the
middle of the 1980s one who brings a charge of sexual harassment is
less likely to be perceived as a disloyal emp)oyee.
40
Her supervisor may
Call Whistleblowing Be FULLY Legitimated? 99
even confront a harasser on her behalf.
41
Courts often support the
legitimate complainant with continued job security and awards.
The difference in outcome can be related to several specific and
to some extent imitable factors. First, the power imbalance between
the one bringing the charge, and the respectable institution, is
mitigated:
a) because of consciousness raising techniques, those bring-
ing charges of sexual harassment have a well-defined
constituency willing to offer support;
b) sexual harassment offers a specific legal ground; and
c) organizations like the Women's Rights Litigation Clinic
at Rutgns University Law School offer litigants well
trained legal help, at a more affordable cost than is
otherwise generally available.
Thus, the disparity of resources between the corporation and the
claimant is made less overwhelming. Second, susceptible bureaucracies
have established internal procedures for sensitizing employees to the
issues that give rise to these complaints.
42
Two factors may be noted:
a) education about sexual harassment is mandated as part
of the legal settlement for a proven sexual harassment
case; and
b) sexual harassment is a "new" form of wrong.
By contrast, with respect to the power imbalance, only one
organization correlates efforts on behalf of most whistlcblowers
"organized ... by a group of young attorneys to defend
and investigate problems of national security resisters,
such as Daniel Ellsberg. By the mid-1970s, their mission had
expanded to . . . issues concerning waste and mIsman-
agement. . in large organizations (and) . . gave
whistleblowers an institutional home.,,43
100 Business & Professional Ethics loumal
Perhaps, in imitation of sexual harassment litigation, the Government
Accountability Project (GAP) would do well to train lawyers in a
variety of locations, and for a variety of specific purposes. The
approach taken by GAP's Kohn in focussing on environmental
whistleblowers suggests specificity is possible.
44
A second potentially imitable factor pertaining to the protecting
whistleblowers relates to the law itself. While an employee who
discovers criminal behavior is enjoined to blow the whistle or become
personally liable to criminal fenalties, only five states prohibit private
employers from retaliating.
4
All but nine states have a public policy
exception that limits an employer's right to fire at will
46
nevertheless,
state by state exceptions limit the effectiveness of this tort. For
example, Maryland law does not require any investigation into
underlying charges of wrongdoing. California law protects whistle-
blowers who testify before special legislative committees
47
but those
who give depositions may not be covered.
48
Public sector employees under the Civil Service Reform Act of
1978 fall under language which seems to protect them for disclosures
within a wide latitude. In addition to crimes, "an employee may now
com plain of mismanagement, gross waste of funds, abuse of authority
or substantial and specific danger to public health and safety.,,4<J But
those charged with protecting confidentiality of public sector employees
apparently put whistleblowers at risk of reprisal, and "courts have
struck an uneasy balance between the employee's First Amendment
right to freedom of speech and the efficient operation of government
agencies. Thus public employee's First Amendment rights . . . vary
from court to court."so Unions and professional societies generally fail
to defend members who live up to professional codes of ethics by
blowing the whistle.
S1
Arbitrators, too, tend to see whistleblowing as
an act of disloyalty which disrupts business and injures the employer's
. 5?
reputation. -
Unpredictability of legal protection may reflect the vagueness of
the law enjoining that "possible acts of dishonest, improper actions or
behavior, ... should be rcported."S3 MacKinnon found that when
company policies were unspecific, cases alleging sexual harassment
tended to be dismissed as personal rather than job related difficulties.
This suggests that vague law might promote dismissive court responses.
Call Whist/eb/owing Be FULLY Legitimated? 101
Thus, more specificity both of lawyers and laws might eventuate in a
more protective environment for legitimate whistleblowing.
Another category of imitative practice might focus on educational
sensitizing sessions, to establish some practices as no longer subject to
social toleration. Educational procedures which create sensitivity about
sexual harassment have been among the most productive means of
fostering community tolerance. It therefore seems appropriate to
suggest that the institution of procedures sensitizing and empowering
employees to prevent other kinds of wrongful practices should be
included among punishments meted out for corporate wrongdoing. It
is important that others within the company be persuaded that loyalty
to the company does not entail support of wrongful behavior.
54
Another possibly imitable factor may be called "moral newness."
As Calhoun
55
points out feminist moral critique begins in an abnormal
moral context where moral ignorance is the norm and only a limited
group are morally aware. Under these circumstances one need neither
be morally defective nor morally corrupt to be at risk of wrongdoing.
As public consensus emerges on the wrongness of the newly sensitive
area, wrongdoers become the subject of reproach. Yet there is an
excusatory element, an acknowledgement that at the level of social
practice, the wrongdoer is part of an oppressive system. The
complications of accomodating to a new consciousness allows for
educational lapses. Normally ethical individuals might be ignorant;
they occupy an abnormal moral context in process of being normalized.
To n:alize a new level of moral behavior in the workplace, when
presumably this level reOects new sensitivities makes it easier for
individuals to accept responsibility for change.
In 1974 when Catherine MacKinnon undertook to establish that
sexual harassment fit the legal contours of discrimination she created
a kind of moral newness as the draft copy of her book circulated.
Courts came to agree with her analysis, so that by 1979, her published
book cites favorable precedents establishing sexual harassment as a
legal claim.
56
The very term, sexual harassment, is a neologism which
"facilitate(s) ... seeing moral issues where we had not previously and
drawing connections bel ween these and already acknowledged moral
issues.'37
102 Business & Professional Ethics lournal
Newness seems paradoxically to smooth the path for those
bringing the charge. Where the accusation focusses upon a newly
normalized moral context, the wrongdoer is accused more of ignorance
than of vice, willful complicity, or self-deception. The wrongdoing is
real, yet the wrongdoer is not ipso facto morally flawed. Rather, moral
newness raises "the possibility of morally unflawed individuals
committing serious wrongdoing:.58
In pursuit of moral newness, perhaps the foolish sounding term
whistleblowing should be replaced with a neologism of more apparent
dignity. The Glazers suggest "ethical resistance." Other routes to
moral newness, such as institutional om buds or compliance officers,
offer hope.
59
But they also pose risks since moral newness is
endangered by familiarity/friendship within an organization. Bok
warns that "many a patient representative in hospitals (exgeri-
ences) ... growing loyalty to co-workers and to the institution.,,6 So
the method for remedying defects within the corporate structure turns
into a management tool, leaving the dissenter "little choice between
submission and open revolt." Another risk involves what James
Thomson calls domestication
61
co-opting the dissenter as the insider
who might eventually persuade. Then the doubter's conscience is
assuaged. But his position is made predictable. Hirschman concludes
this predictability means a fatal loss of power with the dissenter left
hoping even the tiniest influence is worth exerting.
Sensitivity to the need for remedy against deterioration can be
blunted by the familiar and domesticated. As sexual harassment
becomes a normal moral concept and newness thins, potential
wrongdoers may practice techniques of self-deception. A colleague
mentioned hearing an instance of sexual harassment that began with
the offender saying "you will probably call this sexual harassment,
but .... " This demonstrates how fragile it is and yet how important
it is to retain the lens of moral newness.
Re-inventing newness might serve as a means in restoring quality
in legitimate organizations. One step to legitimating whistlcblowing
may be recognition that legitimate organizations suffer remediable
deteriorations in quality. Perhaps eventually we could realize the ideal
in which loyalty to an organization means loyalty to ethical standards
Can Whistleblowing Be FULL Y Legitimated? 103
characteristic of the organization at its finest. But until then
whistleblowing deserves far greater legitimation than it evokes.
Conclusion
To answer the questions asked at the beginning of this paper, not all
whistleblowing should be fully legitimated. The moral ambiguities of
whistleblowing preclude any assumption that all whistleblowing is
intrinsically virtuous. However, some whistleblowing is morally
justified and of indispensible service to society. Such whistle blowers
should find legitimacy in new forms of social practice. At least they
should be saved from suffering punitive sanctions. I argue two sorts of
changes might promote such legitimation. The first requires redressing
the power imbalance by means of specificity in laws and educational
methods. The second, closely allied with the first, requires recognition
that organizations suffer quality deterioration. Moral newness can
serve to disintegrate misplaced familiarity and help repair quality
deterioration within an organization by means of rhetorical neologisms,
educational and legal consensus building techniques.
Notes
I should like to thank the anonymous readers and the editor for their
helpful suggestions through several revisions.
1. Sissela Bok, "Whistleblowing and Professional Responsibility,"
New York University Education Quarterly, Vol. 11, #4 Summer 1980,
p.2.
2. Myron Peretz Glazer and Penina Migdal Glazer, The Whistle-
blowers, Exposing Comlptioll in Government alld Industry (New York:
Basic Books, 1989).
3. Glazer and Glazer, p. 206
4. Ronald Duska, "Whistleblowing and Employee Loyalty," in J. R.
Desjardins and J. J. McCall, Contemporary Issues in Business Ethics
(Belmont, CA: Wadsworth, 1985), pp. 295-300.
104 Business & Professional Ethics Joumal
5. A good summary of the recent literature of definition is provided
by Marian V. Heacock and Gail W. McGee, "Whistleblowing: An
Ethical Issue in Organizational and Human Behavior," Business &
Professional Ethics Joumal, Vol. 6, No.4, pp. 35-45.
6. David Theo Goldberg, "Tuning in To Whistleblowing," Business
& Professional Ethics Joumal, Vol. 7, No.2, pp. 85-94.
7. Norman Bowie, Business Ethics (Englewood Cliffs, N. J.:
Prentice-Hall, 1982), p. 143, cited in Glazer and Glazer, p. 4.
8. Frederick Elliston, John Keenan, Paula Lockhart and Jane van
Schaick, Whistleblowillg Research: Methodological and Moral Issues
(New York: Praeger, 1984), work conducted under a grant from NSF
jointly sponsored by the National Endowment for the Humanities.
9. Elliston, et al., p. 15. (In the text, the authors attribute the
definition to Dr. Johnson who worked as a consultant on the project.
p.23)
10. However, with reference to the legitimation of the practice,
Heacock and McGee suggest that the external whistleblower may
suffer most. "External whistleblowing, in the absence of specific
mechanisms to facilitate it, may be construed as a violation of the
privilege of employment with a firm." (p. 37.) Alternatively, Lee
suggests that with respect to job loss in the private sector, the
whistleblower is more fortunate than many in that all but nine states
allow plaintiffs to use the law of personal injury in case of unjust
discharge by private sector employers if and only if the employer
discharges an employee without just cause and the employee can
articulate a claim involving the public good. For discussion of these
and related points, see Barbara A. Lee, "Something Akin to a Property
Right: Protections for Employee Job Security" in Business &
Professional Ethics Joumal, Vol. 8, No.3, pp. 63-82.
11. Davis appropriately notices that "taking the information out of
channels to try to stop the organization from doing something he
believes is morally wrong" is sufficient to cause organizational members
to regard the informer as a whistleblower. cf. Michael Davis, "Avoiding
the Tragedy of Whistleblowing," Business & Professional Ethics Joumal,
Vol. 8, No.3, pp. 3-20.
12. I think that Davis' observation can be accomodated to the claim
that the whistleblower goes public by noticing the onionlike structure
of the public-private distinction: what is private belongs on the inside
Call Wllistleblowillg Be FULLY Legitimated? 105
of each enveloping segment, all the surrounding outer layers are
perceived as public from that perspective.
13. Elliston, et al., p. 17.
14. Gregory Stricharchuk, "Bounty Hunter, Ex-Foreman May Win
Millions for His Tale about Cheating at GE," Wall Street Journal, June
23, 1988, pp. 1 and 12.
15. Elliston, et al., p.B.
16. cf. Albert O. Hirschman's discussion of remediable flaws in
deteriorating institutions growing out of an effort to connect economic
and political theorizing. Albert O. Hirschman, Exit, Voice and Loyalty,
Responses to Decline in Finns, Organizations and States, (Cambridge,
MA: Harvard University Press, 1970).
17. Ralph Nader, Peter J. Petkas and Kate Blackwell, eds., Wllistle
Blowing (New York: Bantam, 1972); Charles Peters and Taylor Branch,
Blowing the Wllistle (New York: Praeger, 1972); Alan Westin, ed.,
Whistle Blowing! Loyalty and Dissent in the Corporation (New York:
McGraw-Hill, 1981); Greg Mitchell, Troth . .. and Consequences (New
York: Dembner Books, 1981).
18. Glazer and Glazer, pp. 97ff.
19. Glazer and Glazer, pp. 84-85. This point may hold against one
of Davis' suggestions about the way in which a conscientious employee
may avoid the tragedy of whistIeblowing by using some alternative
informant to pass information. cf. Davis, p. 14.
20. Pamela Reynolds, "Respect in Death, For Nuclear Safety He
Took a Stand" Boston Globe, Jan. 11, 1989, p. 1.
21. Reynolds, p. 47.
22. Glazer and Glazer, pp. 30-31.
23. This is described more fully on pp. 11 ff. below.
24. Glazer and Glazer, p. 31.
25. Mike W. Martin, Self-Deception and Morality, (Lawrence,
Kansas: University Press of Kansas, 1986) p. 7.
26. Martin, p. 17.
27. Bok, p. 3.
28. In Elliston, et al., p. 17.
29. Richard De George, Business Ethics, (New York: Macmillan,
1982).
106 Business & Professional Ethics Journal
30. Richard DeGeorge, "Ethical Responsibilities of Engineers in
Large Organizations," Business & Professional Ethics Journal, Vol. 1,
No.1, pp. 1-14, and Business Ethics (New York: Macmillan, 1982),
p. 16l.
31. Goldberg, Ibid.
32. Ronald Dworkin, "Should Homosexuality and Pornography be
Crimes?" The Yale Law Journal, Vol. 75, p. 986, reprinted in A. K.
Bierman and James A. Gould, eds., Philosophy for a New Generation,
(New York: Macmillan, 1981), pp. 279-292.
33. Alan F. Westin, Ibid.
34. Westin, pp. 22 ff, 34-5, 50 and 102; Elliston, et al., pp. 99ff.
35. Glazer and Glazer, p. 210.
36. Reynolds, p. 47.
37. d. Hirschman, Westin and Salisbury. Also, Albert Robbins,
"Dissent in the Corporate World: When Does an Employee have the
Right to Speak out?" Civil Liberties Review 5, (Sept/Oct 1978), pp. 6-
10, 15-17; Phillip I. Blumberg, "Corporate Responsibility and the
Employee's Duty of Loyalty and Obedience: A Preliminary Inquiry,"
Oklahoma Law Rev. 24, (Aug. 1971), pp. 297-318.
38. Glazer and Glazer, p. 160.
39. Cited in Glazer and Glazer, p. 207.
40. Natalie Dandekar, "Contrasting Consequences: Bringing Charges
of Sexual Harassment Compared with Other Cases of Whistleblowing,"
Journal of Business Ethics, Vol. 9, No.2 (1990), pp. 151-158.
41. Danielle Coviello, "Interviews with students who have reported
sexual harassment from employers," unpublished paper, Bentley
College, Women and Society course, Ph. 291 Sec. 002, May 1989.
42. Dandekar, p. 156.
43. Glazer and Glazer, p. 61.
44. Steven Kohn, Protecting Environmental alld Nuclear vVhistle-
blowers: A Litigation Manual, Nuclear Information and Resource
Service, GAP, 1985.
45. David Lindorff, "How to Blow the Whistle--Safely," Working
Mother, June, 1987, p. 25; John Conway, "Protecting the Private Sector
At Will Employee Who 'Blows the Whistle': A Cause of Action Based
Upon Determinants of Public Policy," Wisconsin Law Review 77 (1977),
pp. 777-812; Alfred Feliu, "Discharge of Professional Employees:
Call TyJ/}listleblowillg Be FULLY Legitimated? 107
Protecting Against Dismissal for Acts Within a Professional Code of
Ethics" Columbia Human Rights Law Review 11, (1980), pp. 149-187.
46. Stephen M. Kohn and Michael D. Kohn, "An Overview of
Federal and State Whistleblower Protections," Antioch Law Joumal,
(Summer, 1986), pp. 102-11.
47. Elliston, et al., p. 106.
48. Rosemary Chalk, "Making the World Safe for Whistle-blowers"
Technology Review, Jan. 1988, pp. 48-58.
49. Elliston, et al., p. 109.
50. Elliston, p. 112.
51. Glazer and Glazer, pp. 97ff.
52. Martin H. Marlin, "Current Status of Legal Protection for
WhistIeblowers," paper delivered at the Second Annual Conference on
Ethics in Engineering, TIIinois Institute of Technology, 1982, cited in
Gene James, "In Defense of Whistle Blowing" in W. Michael Hoffman
and Jennifer Mills Moore, cds., Business Ethics, Readings and Cases in
Corporate Morality, (New York: McGraw Hill, 1984), pp. 249-252.
53. Bank of America policy as cited for Miller v. Bank of America,
cited in Mackinnon, p. 62.
54. Michael Davis, whose interest coincides with mine in trying to
support organizational change which would obviate the tragedies of
whistleblowing suggests in addition that employees should receive
training in how to present bad news effectively. I think there is merit
in this suggestion, and I would like to see him explore the means by
which this might actually be accomplished. (Davis, p. 15.) Perhaps
Hirschman's conception of remediable defects in an organization also
deserves more attention than those who discuss whistleblowing have yet
given it. (Hirschman, pp. 33, 45-53, 59 and 77-106.)
55. Cheshire Calhoun, "Responsibility and Reproach," Ethics, 99
(January 1989), p. 396.
56. Catherine A. MacKinnon, Sexual Harassment of Working Women,
(New Haven: Yale University Press, 1979), p. xi.
57. Calhoun, p. 397.
58. Calhoun, p. 389.
59. cf. also, Monte Throdahl, "Anyone Can Whistle," describing
the internal institutionalization of whistleblowing activities at Monsanto
through the Environmental Policy Staff, in A. Pablo Iannone, ed.
108 Business & Professional Ethics loumal
Contemporary Moral Controversies in Business, (Oxford University
Press, New York, 1989), pp. 219-220.
60. Bok, p. 8.
61. James C. Thomson, Jr. "How Could Vietnam Happen? An
Autopsy," Atlantic Monthly, (April, 1968), pp. 45-57 cited in Hirschman,
p.115.