Report No. 179
Mr. M. Devine, in the article referred to, states:
'Whistle blower protection is a policy that all government leaders support in public but few in power will tolerate it in private'.
The four corner stones of the Federal Act of 1989 are: (i) giving the whistle blowers control of their own cases (rather make them depend upon the willingness of Special Counsel to litigate for them) through an Individual Right of Action, providing expanded subject matter and personal jurisdiction for hearings before the Merit Systems Protection Board (MPSB); (2) making the Office of Special Counsel, a risk free option by eliminating provisions 79 granting discretionary authority to the Special Counsel which powers were indeed abused earlier since 1978; (3) expanding the stage of protection by eliminating prior loopholes, broadening the shield for protected conduct and expanding the scope of illegal employer conduct and; (4) creating more realistic legal burdens of proof in order to enable whistle blowers to prevail.
The Act covers not only protection against reprisals but also against removal of duties, failure to provide training or reprimand. The employee can also seek 'interim relief' (Section 1221). Even retired persons could file actions. The employee who succeeds can also be awarded costs. The Special Counsel can pursue corrective action for violation of the Freedom of Information Act, or for violation of civil schemes, laws, rules and regulations. He can also protect witnesses or others from harassment during the proceedings. The Board can also pass orders for contempt of its orders.
The Act makes protection mandatory whenever justified by the evidence in a disclosure. Under the Act of 1989, "if the disclosure was reasonable and significant to public policies.- then the time, manner, place, further motives, audience and anything else will be irrelevant".
The scope of the protection was expanded to protect witnesses and others assisting the inquiry. What is more novel is that it also protected those "refusing to obey an order that would require an individual to violate a 80 law" [sec 2302 (b) (a)] or those commanded to do an illegal act and where the refusal is followed by a reprisal. But this right is not placed in section 2302 (b) (8) and, therefore, does not trigger Individual Rights of Act but fell within section 2302 (b) (a) which requires the Special Counsel to act. Even 'threats' by employer became actionable.
The more important innovation was about the burden of proof. At one time, in McDonnell Douglas v. Green, (1973) 411 US 792, it was held that there were two stages in relation to burden of proof. First, the employee would have to make out a prima facie case of discrimination and then the employer could try to rebut the same. But, even if the employer's case of absence of discrimination was accepted still the employee had to prove that the discrimination and the disclosure were inter-connected.
Even later, it was held that the burden was on the whistle blower and this was on the basis of the principle in Mt. Healthy v. Doyle (1977) 429 US p. 274. This principle has been reversed by section 1214 (b) (4) (B) (i) and section 1221 (e) (1), both in cases of Action by the Individual or by the Special Counsel. Now the Board is bound to order corrective action if the employee "has demonstrated that a disclosure described in section 2302 (b) (8) was a contributing factor in the personnel action" taken against him. 81
Further the employer or the agency has now to prove through "clean and convincing evidence" that it "would have taken the same personnel action in the absence of such disclosure" [see section 1214 (b) (4) (B) (ii) and section 1221 (e) (2)].
Apart from 'interim relief', the 1989 Act provides a successful employee, i.e., one who obtains reinstatement or other success, to opt to go to another department, on transfer. There is no longer the 'you cannot go home' syndrome.
In addition, the new Act restored the remedies under other laws, except the constitutional tort, giving a go bye to principle laid down in Bush v. Lucas: (1983) 462 U.S. 367. The other remedies now saved are those under Back Pay Act, Civil Rights Act, 1871, Privacy Act, 1976 and 1997 and the Tucker Act, 1994, the Veterans Preference Act, 1994 and others.
The Special Counsel cannot disclose the informants' identity without his consent unless such exposure is felt necessary "because of an imminent danger to public health or safety or imminent violation of any common law" by the whistle blower.
In 1994, twenty new amendments were added to strengthen protection. Now, after 1994, the employer cannot resort to "any other significant change in duties, responsibilities or working conditions". This 82 prohibited even reprisals by employers quoting "security reasons" for change in duties or responsibilities. This was to overcome certain reprisals based on "security clearance abuses" against whistle blowers in the Airway's Strategic Defence Command and in the Star Wars Programme.
The 1994 Amendments enable consequential damages, medical expenses also to be paid with a view to restore the employee wholly to the status quo ante as if no retaliation had occurred.
Since 1994, the complaints (appeals) before the Board have yielded substantial results in favour of the employees.
The above provisions of the US Federal Act of 1989 are therefore of far-reaching importance and are wider than the UK Act of 1998, the Australian Act of 1994 and the New Zealand Act, 2000.