Silence as the Problem

An employee-witness has at least two aims: protecting himself (including career, health and reputation) and addressing the originally disclosed problem. Retaliation manipulates these multiple focuses against the whistleblower. Leaving necessarily distances the whistleblower from correcting the problem situation, whether the departure is noisy or silent. In practice, leaving may also short-circuit a former whistleblower's career, even outside the agency. Under the current MSPB system, only by staying and often enduring further retaliation can federal whistleblowers preserve their legal rights. It's a powerful way of chilling workplace speech.

Since private employment attorneys are neither civil servants nor involved in law enforcement, some give their own bottom line the most weight and, provided the agency agrees to pay their fees, promote both contracts of silence and departure. Because employment lawyers generally try to negotiate silence about their clients' misconduct (hence the presumption that "no comment" is a bad reference), this silence strategy may well negatively impact the whistleblower's career. Plus, agreeing to keep silent can continue to trouble a whistleblower's conscience. Psychological and spiritual reasons (even health complications) may mean that whistleblowers need to be heard, whether within or outside the system.

Unlike the MSPB, the EEOC and Secretary of Labor and most courts refuse to enforce contracts requiring silence about misconduct as against public policy. They reason, as have many courts other than the Federal Circuit, that allowing employers to silence employee-witnesses encourages legal violations. The Federal Circuit may be moving toward this position, for last year it recognized that intolerable working conditions prompted by whistleblowing can improperly force out conscientious employees. See Shoaf v. Department of Agriculture, 260 F.3d 1336 (Fed.Cir. 2001). This summer, Kasarsky v. U.S. Postal Service, ___ F.3d ___ (Fed.Cir. July 17, 2002) restricted the MSPB's timeliness dismissals over alleged breaches of settlement agreements--the agency must now first notify the employee that it has complied with the contract (not surprisingly there involving payment of attorney's fees).

Where a whistleblower falls silent, the underlying illegal, illegitimate or immoral conduct almost always remains, possibly with a cosmetic cover. Therefore, silence ignores (or even defeats) the policy reasons for outlawing retaliation in the first place: to allow exposure and reform of bureaucratic problems which many people of good will inside and outside the agency want corrected.