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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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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).
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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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