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Confidentiality and Whistleblowers

Legal System Concerns

Courts cannot guarantee confidentiality. The justice system values truth, while also recognizing the need to speak freely and candidly. Thus, judges allow consultations with various types of professionals different levels of confidentiality. The highest level of confidentiality is for private conversations with (and notes and drafts by) an attorney. Courts also recognize pastoral confidentiality, while limiting it to priests or similar spiritual counselors recognized as religiously obligated to confidentiality (although those with independent therapy credentials may qualify for the next category). Conversations with licensed mental health professionals receive confidential treatment with a big gap--medical practitioner notes and reports may be disclosed to the opposing party where health is at issue. Conversations with family are probably more confidential than those with friends, where disclosure may be compelled.


These gradations may make clients in retaliation situations (almost by definition either stressful or abusive) more talkative with attorneys than others. Certainly, some people will use this as a reason against consulting mental health or spiritual professionals for help with the stress. Unfortunately, attorneys' professional training almost never includes anything about mental health and feelings. This is not their job. Yet discouraging that talk as both expensive and irrelevant to the legal issues involved avoids a chunk of both the retaliation issue and its proof. Often, whistleblower attorneys have preferred therapists. Character and strategy also matter in terms of attorneys keeping confidentiality. Some attorneys prefer "open book" negotiations, pretty much discarding confidentiality, so discussing confidentiality at the start may avoid unpleasant late surprises.

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Employee Assistance Programs

Bosses may refer whistleblowers to agency ethics counselors or the local Employee Assistance Program (EAP) as part of a harassment process. Breaking the silence of course relieves some stress. Still, if information gets back to the boss by the backdoor (especially in writing), confidentiality breaches erode trust further. Ethics officers often have a policy of telling the manager first. Oftentimes, ethics officers and EAP personnel feel more loyal to the current bureaucracy than to employees who come for help. Some simply feel flattered by the boss's assurances that they are receiving "better" or "truer" information than the labeled"problem employee." While this implicates professional counseling ethics, some EAP counselors avoid professional confidentiality guidelines by refusing to label employees clients.

Even EAP counselors who adhere to professional standards often basically act as therapist referral points (on the employee's dollar). While some EAPs refer employees to a number of private practitioners or to educational programs, others prefer a close relationship with just one or two private providers. Some preferred practitioners routinely prescribe the employee's departure or use the quick fix of mood altering drugs (which the agency's security division may consider a security risk).

Mental Health Accusations

Mental health issues arise directly when a retaliating boss tries to portray the whistleblower as crazy. The 1994 Amendments to the Whistleblower Protection Act addressed this situation. An agency's decision to order psychiatric testing or a fitness-for-duty examination is appealable to the Merit Systems Protection Board (codified at 5 U.S.C. 2302(a)(2)(A)(x)). However, the employee must know about the protection, and it arises only when the accusations rise to the level of formal documentation. Oral remarks, quips or shunning--all are more subtle--yet can make a workplace intolerable for a whistleblower (or anyone else). Of course, that is retaliation's goal: to make the whistleblower either leave or seem crazy for sticking in in no-win situation.

Where the retaliating boss knew beforehand that the employee had received mental health counseling, the Americans with Disability Act may be afford a level of protection. However, that's another set of stigmas, litigation stress, and also tough to prove. Some private attorneys use prospective mental health disclosures in discovery to argue for settlement. This privacy breach of course also makes the whistleblower the problem, instead of the situation sought to be reformed.
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