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Publication Date

2020

Abstract

International events over the last year have propelled the
importance of whistleblowers to the forefront. It is increasingly
evident that whistleblowers provide immense value to society.
Yet, for years, whistleblowers have been victims of retaliation,
commonly experiencing threats, discrimination, and
employment termination due to their reporting. Against the
backdrop of a society heavily defined by compliance-focused
initiatives—where organizations and industries construct
robust compliance programs, internal policies, and codes of
conduct—this Article highlights a significant gap in legal
protections for would-be whistleblowers. While compliance
initiatives demonstrate that active self-regulation is
increasingly a staple of organizational governance, this Article
pinpoints the problems that arise when such initiatives extend
beyond applicable legal thresholds for retaliation protection.
This over-extension leaves vulnerable employees and potential
whistleblowers without legal recourse following adverse
employment actions, even if they comply with their employers’

internal policies and compliance programs. We examine this
gap in legal protections in the context of compliance initiatives
in three domains: equal employment opportunity and sexual
harassment; securities fraud; and anti-corruption. We then
compare these initiatives with the legal and regulatory
compliance postures under Title VII of the Civil Rights Act of
1964, the Dodd–Frank Wall Street Reform and Consumer
Protection Act, and the Foreign Corrupt Practices Act,
respectively, to illustrate how most compliance initiatives fail
to mirror the retaliation protections under those statutes. To
remedy this gap in protections, we propose complementary
solutions under contract and tort law frameworks, coupled
with soft law initiatives.

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