Free Speech in the Workplace
Free Speech in the Workplace:Public Desire and Emerging Lawby
Geoffrey Hull
Geoffrey Hull is a Professor of Recording Industry in the College of Mass
Communication at Middle Tennessee State University. He holds the J.D.
degree from University of Virginia Law School and is a member of the
American, Tennessee and Georgia Bar Associations.
Free Speech in the Workplace: Public Desire and Emerging Law
A public opinion survey finds that people view whistleblowing and differing
publicly with their employers about politics as important forms of free
speech. Yet women, minorities and older workers particularly are
afraid to
speak out in the workplace. Emerging federal and state statutory and
common law is beginning to increase protection for these forms of
speech.
This paper examines the details of the public opinion study and
interfaces
that with the emerging law protecting such speech.
Free Speech in the Workplace: Public Desire and Emerging Law
I. Introduction.
Work--an experience shared by an estimated 127 million Americans in 1992.[1]
Free speech--one of the rights Americans treasure most.[2] Yet only in the
last fifty years of its two hundred year life have the guarantees of
the
Bill of Rights, particularly those embodied in the First Amendment,
begun
to enter the workplace.[3]
Even as freedom of expression is beginning to enter the workplace as a
constitutional guarantee, a major, nation-wide survey found that women,
minorities and older workers are much more likely than other workers to
be
inhibited about exercising these new freedoms.[4] The study revealed
that
self-censorship resulting from fear of hurting others, fear of
retaliation
or fear of personal inadequacy is the major factor inhibiting free
expression. The inhibition is particularly invidious because those who
most need to be able to exercise their rights are often the most
vulnerable
to workplace censorship--even of themselves. If our society wants to
encourage political speech and speech on matters of public concern then
the
workplace, which occupies such a significant portion of the peoples'
energies and attention, should not be insulated from public debate. The
findings of this research indicate that it may be the public's desires
to
exercise their rights in the workplace that is the impetus to
increasing
court and legislative protection for free expression in the workplace.
The
findings are even more significant in light of Labor Department
projections on the make up of the labor force. In 1992 non-whites composed
14.6 percent of the labor force (18.5 million workers). By 2005, with
moderate growth , minorities are projected to comprise 17.1 percent of
the
labor force (25.7 million workers). A similar trend is predicted for
an
increase in the numbers and percentage of women in the labor force. In
1992 women were 45.5 percent (71.8 million workers) and are predicted
to be
47.7 percent of the workers (71.8 million workers) by 2005. Finally,
workers age 55 and over were 12.1 percent of the labor force in 1992
(15.4
million). By the year 2005 they will probably be 14.2 percent of the
labor
force and total 21.3 million.[5] If these increasingly significant groups of
workers are to have free expression in the workplace then the laws
protecting them from retaliation from their employers for political and
other speech must be clear and well known.
A trend in research in legal sociology to regard the law "as a living
force of which we must not only acknowledge the existence (and as the
case
may be, the validity), but also determine the origin and the effect on
society. There is accordingly an increasing and fruitful tension
between
the "is" and the "ought to be", between society and the law which is
born
in society and acts upon it."[6] The focus of this research is the
relationship between the state of the law and public attitudes towards
freedom of expression in the workplace.
II. Methodology.
Initial data on public attitudes toward freedom of expression was gathered
during a nation-wide random-digit-dialing telephone survey conducted by
ICR Survey Research Group in June of 1990.[7] The sample size of
1,508 gave a
margin of error of 2.5% at the 95% level of confidence. Responses were
weighted for age, gender and race to reflect general population
demographics using CACI Marketing Systems estimates for the 1990
population.[8]
III. Survey Findings.
Among the basic findings of the survey was that, "[T]he workplace is the
area where most Americans feel most restricted in our society--and are
least protected by the Constitution."[9] Specifically, the survey asked
respondents to say how free they felt to speak out in ten different
environments ranging from "At home among members of family" to "At work
around the boss or supervisor." A high level of discomfort with
exercising
one's free speech rights, whatever they may be in a given situation, leads
to self-censorship. The survey results indicated, "The environment the
American public feels most restricted in is the workplace around the
boss
or supervisor, where 40% say they feel very free, about a third
somewhat
free and about a fifth slightly free or not free at all."[10] To
arrive at a
more clearly defined rank order of the speech environments the
responses of
"Not free at all", "Slightly free", "Somewhat free" and "Very free" were
receded on a four point scale with values from zero to three
respectively.
The means range from a high degree of perceived freedom of 2.85 on "At
home among members of family" to a low of 2.00 for "At work around the
boss
or supervisor."
Table One
Free Speech Environments: by mean degree of perceived freedom
MEAN
At home among members of family 2.85At home among close friends 2.57At
worship around the minister 2.30At parties 2.29At shopping
malls or
in stores 2.28At sports events 2.26At organizations or civic
clubs
2.25In restaurants or bars 2.22At work among fellow
workers 2.16At
work around the boss or supervisor 2.00
The workplace is clearly the environment where Americans feel least free
to speak out.[11] The order of the rankings suggests that perceived
freedom
generally decreases with distance from family and friends and
decreases as
environments become more structured.
In addition to exploring where people feel free to speak out the survey
also examined the reasons why they might not speak out. The
respondents
were asked to rate thirty-three reasons which were "very likely" to
"not
likely at all" to cause them to "keep quiet and not say anything."[12]
Two of
these "inhibitors" were directly related to the workplace--"Your
supervisor
or boss may make things difficult for you," and "You may not get ahead in
the organization or company you work for."
Factor analysis of the thirty-three expression inhibitors revealed three
groupings: a "fear of hurting others", a "fear of retaliation" and a
"fear
of personal inadequacy."[13] Interestingly enough, the two workplace
inhibitors did not factor into the same solution. Concern over the
supervisor or boss making things difficult factored in with general fears
of retaliation from the government, physical retaliation or legal
retali
ation. However, fear of not getting ahead factored with other
inhibitors
under the personal inadequacy group, "suggesting that this item is
perceived as an individual trait related to likability rather than as part
of an external reward and punishment structure such as fear of the
boss.
Fear of not getting ahead is accorded moderately low importance."[14]
It was
ranked 16 out of 22 speech inhibitors that factored into the "fear of
personal inadequacy" solution. For that reason, fear that "Your
supervisor
or boss may make things difficult for you" is the primary focus of the
paper.
Respondents rated fear of retaliation by the boss or supervisor eleventh
out of the 33 inhibitors with a mean score of 2.95 on a one to five
scale.
The highest ranked inhibitor was "Saying what's on your mind could harm or
damage other people" (mean ranking 3.58). The lowest ranked inhibitor was
"People may think you are not cool or with it" (mean ranking 2.42).[15]
Responses for fear of retaliation by the boss were almost equally
distributed on each point of the scale with 18 percent saying "extremely
likely", 19 percent finding it "very likely", 18 percent finding it
"moderately likely", 17 percent finding it "slightly likely" and 21 percent
finding it "not likely at all" to inhibit their speech. The relatively
even response rates to the different categories differed markedly from
the
more polarized responses to the other fear of retaliation items.[16]
This
finding would suggest that something is different about the inhibiting
nature of the workplace from the inhibiting nature of threat of law
suit,
physical harm, arrest or government monitoring. Perhaps it is a fear
which
more people have to some degree, but that degree depends upon their
relative job security.
A closer examination of the data revealed that the possibility of
retaliation from the boss is even more inhibiting for women, minorities and
older members of the work force. Gender, race, age and income
significantly affected the amount of inhibition felt by the respondents,
even selecting a level of significance at 0.001 due to the large
sample
size.[17]
Table TwoFear of Boss Retaliation by Gender, Age, Race and
Income
Variable Cramer's V Significance Gender 0.12790 0.00017
Education 0.12638 0.00000 Age 0.18777 0.00000 Race 0.13372
0.00000 Income 0.09792 0.00005 Region 0.07258 0.07086
Wyatt earlier found that men were generally more protective of free speech
and less inhibited about speaking out than women. He concluded,
"[F}emales feel...more vulnerable and are more easily intimidated than
males....A society in which females make up a majority and are more
reluctant than males to express what is on their minds--for fear of
physical harm or other perceived threats--is far from egalitarian."[18]
Gender
differences in fear of retaliation by the boss tended to be bi-modal.
More women than men reported they were either "not at all likely to be
inhibited" by the boss or were "extremely likely" to be inhibited by the
boss.
Table Three
Gender and the mean level of fear of retaliation by boss.
Likelihood of Inhibition Women % Men %
Not at all likely 53.7 46.3
Slightly likely 40.9 59.1
Moderately likely 50.6 49.4
Very likely 55.5 44.5
Extremely likely 57.0 43.0
People without at least some college education are much more likely to
fear retaliation by their supervisors. The mean level of fear of
retaliation by people with a high school diploma or less was 3.09 compared
with 2.84 and 2.83 for people with some college or with a college
diploma
respectively.
The oldest workers reported that they are most likely to be inhibited
through fear of retaliation by their boss. Table four also indicates
that
a similar level of fear exists among the youngest workers.
Table Four
Age and mean level of fear of retaliation by boss.
Age Category Mean level of inhibition
18-34 2.98
35-49 2.92
50-64 2.83
65 and over 3.09
Racial differences in fear of retaliation from a boss were also
significant, with minorities, particularly blacks, expressing the most
concern. Whereas whites in general rated fear of boss retaliation at a
mean of 2.91, blacks rated it significantly higher at 3.24. Other
minorities rated fear of boss retaliation at 3.09.
Increased fear of retaliation was also clearly associated with lower
income. Those reporting earnings of under $15,000 per year gave a mean
likelihood of inhibition of 3.12 while those with annual incomes above
$50,000 reporting a 2.70 mean likelihood of inhibition. As the table
below
indicates, the higher the income level of respondent the less they
feared
reprisals from their bosses.
Table Five
Mean level of fear of retaliation by boss and annual income.
Annual Income Mean level of inhibition
Under $15,000 3.12
$15,000 - $25,000 2.97
$$25,000 - $40,000 2.90
$40,000 - $50,000 2.75
Above $50,000 2.70
People apparently view two important aspects of workplace speech as
"political." To determine the public perception of the kinds of speech
that should be protected the respondents were asked to rate the amount
of
protection they would afford twenty-four separate free speech
"rights."
Although a discussion of all of the rankings is beyond the scope of
this
paper the factor analysis revealed that the public wants to accord
free
speech protection depending upon the subject matter and that the
subject
matter tends to fall into five classes.[19] Two workplace speech
rights,
"employees reporting misdeeds by the boss", and "employees differing
publicly with the boss about politics" factored in with three other rights
which might generally be deemed "political." The other "political"
speech
rights included; "speaking out in favor of any candidate for office",
"disagreeing with the president or other officials", and "advocating
interracial marriage or dating."[20]
IV. Public Opinion and the Law.
The focus must now be shifted to a more detailed examination of the social
and legal parameters of the two workplace speech items--whistleblowing and
differing publicly with the boss about politics. Since the most severe
form of retaliation from a supervisor would be dismissal, the law
regarding
retaliatory discharge is examined with respect to whistleblowing and
speaking out on political questions or matters of public concern.
In addition to the First Amendment of the Federal Constitution, the
constitutions of thirty-eight states have provisions protecting free
speech.[21] Some are as broad as Tennessee's Article I, Section 19 which
states, "The free communication of thoughts and opinions, is one of the
invaluable rights of man, and every citizen may freely speak, write,
and
print on any subject, being responsible for the abuse of that
activity."
Others are less broad and only restrict the state from passing laws
restricting free speech. However, they are important because they
establish clear public policy in favor of free speech.
Clear statements of public policy are one of the ways the courts have used
to create exceptions to the general policy allowing termination of private
employees "at will." In an industrial revolution society which regarded
labor as "units of input" the common practice and law came to be that,
in
the absence of some contractual agreement, an employee could be hired
and
fired at will. As one author put it, "An employer may dismiss an
at-will
employee for a good reason, a bad reason, or for no reason at
all."[22] Over
the last fifty years more than three-fourths of the states have
abandoned
the employee-at-will doctrine and have allowed terminated employees to
sue
for wrongful termination under certain circumstances. Among those
circumstances are violations of the free speech rights of the employees.[23]
A. Whistleblowing.
Employees reporting on the misdeeds of their boss or organization is
generally referred to as "whistleblowing." The last decade has seen the
emergence of whistleblowing statutes in at least eighteen states[24]
and the
1988 Federal Whistleblower Protection Act.[25] The federal act
protects a wide
range of kinds of misdeeds that can be reported, including violations of
law, rules or regulations, and more broadly, "mismanagement, a gross
waste
of funds, or an abuse of authority, or a substantial and specific
danger to
public health or safety." The state laws, however, vary considerably in
what kinds of deeds can be reported. Some restrict protection to
reporting only specific violations of law, others, like the federal
statute, are more broad.[26]
The survey found strong public support for "Employees reporting misdeeds
by the boss" with respondents giving it the third highest average
protection out of all twenty-four free speech rights--a mean rating of 2.54
on a three point scale--right behind speaking out in favor of a candidate
for public office (mean 2.63) (a speech right also protected by the
federal
statute) and disagreeing with the president or other high government
official.[27]
There is a developing consensus among the public, management and the
courts that whistleblowing is a form of First Amendment free speech. The
factor analysis of the individual free speech rights in the survey
included
whistleblowing with other clearly political speech rights. Wyatt
speculates, "Its inclusion in the political speech factor indicates that
whistleblowing may well be on its way to becoming a major right in the
view
of the American Public."[28] Management writers are beginning to speculate
that the increase in whistleblowing is "derived from an increased
perception that unscrupulous business activity may jeopardize important
public interests."[29] Another author defines whistleblowing as, "a
form of
dissent resulting in public disclosure of perceived wrongdoing by
organization employees."[30] The courts are also tending to view
whistleblowing as a form of protected speech under the First Amendment
and
to provide a private cause of action for employees dismissed as the
result
of whistleblowing activities.[31]
Further analysis of the data revealed no significant gender or race
differences regarding attitudes towards protecting whistleblowers but did
find older people significantly more likely to respond that
whistleblowing
should be less protected.[32] These attitudinal findings are somewhat
in
contrast to a study of actual whistleblowers in the United States Merit
System in 1988 which found that "members of minority groups were no
less
likely to blow the whistle than were whites" but that males were more
likely to blow the whistle than females.[33]
As protection for whistleblowing as a form of free speech increases it is
wise to keep in mind two societal factors. When there is a societal
consensus about the wrongness of the act and the rightness of the person
who reports it then there will be more reports, especially when there
is
then follow-up support for the person who reports the misdeeds. One
author
notes, however, that one of the greatest whistleblowing periods of recent
history was the McCarthy era. Hundreds of people were busily
reporting
illegal acts, such as membership in the Communist party. The ultimate
decision as to whether whistleblowing is speech protected by the First
Amendment may depend more upon which actions society considers
blameworthy
than upon any inherent value perceived in whistleblowing per se.[34]
B. Politics in the Workplace.
Disagreeing publicly with the boss about politics is another "right" which
the survey respondents felt strongly should be protected with 64% saying
"Protected all the time", 31% "Some of the time", and 8% "Not at all."
The
mean ranking of this "right" was fourth with a mean of 2.49 on a three
point scale--right behind whistleblowing.[35]
Additional data analysis revealed that attitudes towards differing
publicly with the boss on political matters varied significantly with
gender and age.[36] More men believe such speech should be protected
absolutely (63.2% compared to 53.9% of the women) and more women believe it
should not be protected at all (11.4% compared to 8% for men). Age
differences proved bi-polar with the youngest groups and oldest groups
feeling public political differences should be less protected.[37]
Table Six
Differing Publicly With the Boss About Political Issues
Degree of Age Categories
Protection 18-34 35-49 50-64 65+
Not at all 9.7% 7.7% 10.5% 12.6%
Sometimes 32.0% 26.0% 27.8% 41.6%
Absolutely 58.3% 65.9% 60.9% 43.1%
At the same time that the survey was gathering these data the Supreme
Court of the United States was making a major decision regarding
political
speech and civil rights violations. In Rutan v. Republican Party of
Illinois[38] the Court ruled that Governor James Thompson of Illinois
could not
base the hiring and firing of low level civil servants in Illinois on
whether they had supported or worked for the Republican party. Said the
Court, "promotion, transfer, recall and hiring decisions involving low
level public employees may not be constitutionally based on party
affiliation and support."[39] Such actions against state employees, held the
Court, gave rise to civil rights violations prohibited by U. S. Code
Section 1983 for violations of rights protected by the First and
Fourteenth
Amendments. Writing for the majority Justice Brennan quipped, "To the
victor belong only those spoils that may be constitutionally
obtained."[40]
In addition to Rutan, which applied to state employees, a number of state
and federal courts have held that free speech is an important public
policy of the state and that in order to terminate an employee because of
the employee's political speech or speech on matters of public
concern the
employer must have legitimate reasons. They are generally stated as:
1. Whether, because of the speech, the employer is prevented from
efficiently carrying out its responsibilities;2. Whether the
speech
impairs the employer's ability to carry out his own
responsibilities;3.
Whether the speech interferes with essential and close working
relationships;4. Whether the manner, time and place in which the
speech
occurs interferes with business operations.[41]
IV. Conclusion.
The public clearly views the workplace as the most repressive environment
for free expression. Yet the public also clearly feels that in the
workplace their political expression, including whistleblowing, should be
protected. The law is definitely changing to allow more freedom of
expression in the workplace with the erosion of the common law
employee-at-will doctrine, the passage of federal and state
whistleblower
statutes, and the passage of federal and state laws to protect
political or
other speech. Wyatt points out that his survey results indicate, "a
substantial plurality--and often a majority--of Americans oppose
protection
for forms of expression that do not remotely affect the national security
but merely represent things members of the public disagree with or
dislike."[42] But in the workplace the increasing protection for free
speech,
at least to the extent of "political" speech, is clearly in step with
the
desires of the public.
Perhaps we are simply witnessing a situation where public opinion is
influencing what is regarded as free speech. As Alexander Hamilton put
it
during the debate surrounding whether free speech and liberty of the
press
should be set forth in a Bill of Rights as part of the Constitution,
"Whatever fine declarations may be inserted in any constitution respecting
it, must altogether depend upon public opinion, and on the general
spirit
of the people and of the government."[43] Although Hamilton was
opposed to a
specific Constitutional guarantee of free speech he would no doubt
agree
that in the current instance the public's opinion on the desirability
of
free speech in the workplace and the laws providing it are at least
moving
in the same direction. For these rights to be significant for women,
minorities, and older workers they will have to have an improved level of
confidence that they will be protected if they engage in
whistleblowing or
publicly differ with their bosses about political matters. As long as
the
workplace is viewed as the most repressive environment for free
speech,
fear and self-censorship will deprive all citizens of important public
information from whistle-blowers and important public debate between
empl
oyers and their employees.
[1] U. S. Department of Labor, Bureau of Labor Statistics, Monthly Labor
Review, 105 (November 1993).
[2] 2Robert Wyatt, Free Express
ion and the American Public, (Washington,
D.C.: American Soci
ety of Newspaper Editors, 1991) at 10.
[3] One of the earliest protections
of speech was for employers involved in
labor disputes. The National La
bor Relations Act of 1935 (Wagner Act)
protected anti-union s
peech of employers from being an violation of the
Act. 19 U.S
.C. _158(c). It was amended in 1947 to also protect
anti-man
agement speech of the unions. However, neither side is protected
if the speech is coercive, threatens violence, economic reprisals or o
ffers
of economic benefits as a method of coercion. The Act was upheld a
gainst
a First Amendment constitutional challenge in NLRB v.
Virginia Electric &
Power Co., 314 U.S. 469 (1941). Other sp
eech-related cases sought to
maintain the balance of free spe
ech versus the possibility of coercion or
reprisals. See, Th
ornhill v. State of Alabama, 310 U.S. 88 (1940); Old
Dominion
Branch No. 496, National Association of Letter Carriers v. Austin,
418 U
.S. 264 (1974); Electrical Workers , Local 501 v. NLRB 341 U.S. 694
(1951).
[4] Wyatt, 49-60.
[5] U.S. Department of Labor, Bureau of
Labor Statistics, Monthly Labor
Review, 32 (November 1993).
[6] Viktor Knapp, "Legal Science," in Main Trends of Research in the Social
and Human Sciences, Part 2 Vol. 2, 923 (UNESCO 1978).
[7] The author wi
shes to express thanks to Professor Robert Wyatt for
making t
he data collected through the Office of Communication Research at
Middle Tennessee State University available for further analysis.
[8]
For additional details, see Wyatt, 277-278.
[9] Wyatt, 89.
[10] Wyatt, 5
1-52.
[11] These rankings differ slightly from those exhibited in the earl
ier
report which was based on the percentage responding "very
free." Most
notably "At work among fellow workers" dropped
from seventh in the rankings
to ninth. The two workplace environments ar
e now next to each other at
the bottom of the rankings.
[1
2] The thirty-three expression inhibitors rated were:You may be hit or
physically harmed.You may be misunderstood.You like for everythin
g to go
smoothly.People may think you are not "cool" or
not "with it".You may be
arrested for your opinions.What
you say won't make any difference anyway.A
spouse, rela
tive or close friend is listening and would not approve of
what you say.You are reluctant to express a minority viewpoint.You like
to
avoid arguments.What you say may be taken out of con
text or misquoted.
People you want to be like may reject
you.You don't want people to think
you are "odd" or "dif
ferent".Your opinions aren't really important.You lack
self-confidence.It
's not worth the effort.You may make a fool out of
yours
elf.God may punish you for what you say.You want everybody to like
you.People you admire and respect may not approve of you.You are
shy.You
could be sued.You don't want to get involved.Sp
eaking your mind may hurt
the feelings of those you care
for.What you say may come back to haunt
you.You may no
t get ahead in the organization or company you work for.
People may think you don't know what you're talking about.You want to be
polite.Saying what's on your mind may harm or damage othe
r people.Your
supervisor or boss may make things difficu
lt for you.Your language could be
offensive to other people.Your opinions
could be offensive to other
people.You are uncomfortabl
e expressing an unpopular opinion.Police or
government a
uthorities may monitor your conversation.
[13] Wyatt, 54.
[14] Wyatt, 57
.
[15] Wyatt, 51.
[16] Wyatt, 55.
[17] The large sample size and lack of
uniformity in table dimensions
indicated that Cramer's V was
the appropriate statistic. Detailed
statistics such as thes
e were not reported in the original publication.
Age was reg
rouped into five categories from the original seven. Education
was regrouped into three categories from the original nine. Race was
regrouped into three categories from the original five. Income
was
regrouped into five categories from the original eleven.
Wyatt, 96-97.
[18] Wyatt, 68.
[19] The five factor solution included "o
bscenity and blasphemy",
"political speech", "subversive spee
ch", "improper speech", and "slanderous
speech." Wyatt, 19-25.
[20] Wyat
t, 22.
[21] They are: Alabama, Alaska, Arkansas, California, Colorado,
Connecticut, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, K
ansas,
Kentucky, Louisiana, Maine, Maryland, Michigan, Minnes
ota, Missouri,
Montana, Nebraska, New Jersey, New Mexico, New
York, North Dakota, Ohio,
Oklahoma, Oregon, Pennsylvania, So
uth Dakota, Tennessee, Texas, Utah,
Virginia, Washington, Wis
consin, and Wyoming. Legislative Drafting Research
Fund of Columbia Unive
rsity, Index Digest of State Constitutions (Second
Ed.), (195
9)
[22] H. Perritt, Jr., Employee Dismissal Law and Practice (second editi
on),
(1987), 1. As one author put it, "Once a court adopts the public po
licy
exception, a wide spectrum is found." Charles H. Anders
on, "Retaliatory
Discharge and Public Policy," Tennessee Bar
Journal, (November/December
1991) 30, 32.
[23] Perritt, 14-3
7.
[24] See Perrit, 545-571 for a listing of specific statutory reference
s.
Michigan was the first state to pass such a law in 1981.
In "Protecting
the Whistleblower" Gregory Parliman states th
e number of state statutes at
half of the states, but does no
t specify which states those are. 32
Personnel Administrator
26-32 (July 1987).
[25] 5 U.S. Code __ 2301(a)(8) and (9).
[26] For an e
xcellent discussion of state laws, and their differences, see:
T. Dworki
n and J. Near, "Whistleblowing Statutes: Are They Working?" 25
American Business Law Journal 241-265 (1987). See also, J. Howard,
"Current Developments in Whistleblowing Protection," 39 Labor Law
Journal
67 (1988).
[27] Wyatt, 19.
[28] Wyatt, 22.
[29] K
evin Smith and John Oseth, "Whistleblowing Era: A Management
Perspective," 19 Employee Relations Law Journal 91, at 179 (Autumn 1993).
[30] J. Fiesta, "Whistleblowers: Heroes or Stool Pigeons? Part I," 21
Nursing Management, at 16 (1990).
[31] Five states (Arizona, Ka
nsas, New Jersey, New Mexico and Rhode Island)
have recognized whistleblo
wing as a public policy exception to the
"employee at will" d
octrine. In Brown v. Texas A&M University, 804 F. 2d
327 (5t
h Cir. 1986), the Federal Appeals Court specifically recognized
whistleblowing as protected speech if it is for the public good. Most
statutes and court opinions do point out, however, that the in
terests of
the state in free speech must be balanced by the i
nterests of the employer,
particularly if the employer is also the state.
See Megan P. Norris,
"Limitations on Employer's Ability to
Discipline Free Speech," 17 Employee
Relations Law Journal, 4
73 (Winter 1991) for a good discussion of the
development of
the law in the courts.
[32] Cramer's V statistic for sex 0.0126 (significa
nce .87259), for race
0.05385 (significance 0.19192), and for
age category 0.10196 (significance
0.0000).
[33] M. Miceli
and J. Near, "Individual and Situational Correlates of
Whistl
e-Blowing," 41 Personnel Psychology, 267- 281 (1988). Another study
which apparently did not measure demographic variables, or found th
em not
significant, reported that comprehensiveness of retali
ation for
whistleblowing tended to vary inversely with the po
wer of the person
blowing the whistle and directly with the s
everity of the alleged
wrongdoing. J. Near and M. Miceli, "R
etaliation Against Whistleblowers:
Predictors and Effects,"
71 Journal of Applied Psychology 137-147 (1986).
[34] N. Dandekar, "Contra
sting Consequences: Bringing Charges of Sexual
Harassment Co
mpared with Other Cases of Whistleblowing," 9 Journal of
Busi
ness Ethics 151-158 (1990).
[35] Wyatt, 19, 21.
[36] Cramer's V statistic
for sex 0.10858 (significance 0.00052), for race
0.06497 (si
gnificance 0.4898), and for age categories 0.10579 (significance
0.00000)
.
[37] Virtually all Chi Square statistics tested at a 0.00000 level of
significance for these findings.
[38] 497 U.S. 62, 110 S.Ct. 2
729 (1990).
[39] 110 S.Ct. at 2738.
[40] 110 S.Ct. at 2731.
[41] Novosel
v. Nationwide Insurance Co., 721 F.2d 894, 901 (3rd. Cir.
19
83).
[42] Wyatt, at 6.
[43] A. Hamilton, "The Federalist Papers, Number E
ighty-four," in The
Federalist Papers, (R. Fairfield, ed.) at
263-264 (1961).
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