What Is A Whistleblower And What Protections Do They Have Against Employment Discrimination?

“Whistleblower” is a term used to describe someone who reports their employer (or someone else employed at their company) for improper or illegal practices. The behavior a whistleblower might report includes things like illegally dumping toxic chemicals, illegal discrimination in employment, illegally overcharging customers, Medicaid and Medicare fraud, and so on.

As in most other states, the general rule in Missouri is that an employer may fire an employee at any time, for any reason or no reason at all. This is called “employment at will.” But there are exceptions to the employment at will doctrine. The most basic exception is that an employer cannot fire an employee without consequences if the employee has an employment contract which prevents that.  Another exception to the employment at will doctrine is that an employer cannot make employment discrimination decisions on the basis of race or other specifically illegal factors.

Missouri also has a “public policy” exception to the at will employment doctrine. This is a catch-all concept that that an employer cannot fire an employee for a reason which violates  Missouri’s public policy.  That’s basically another way of saying that the state of Missouri has an interest in encouraging the employee’s behavior.

For example, consider a situation where an employer is being investigated by the government for illegal conduct. In order to keep its illegal conduct hidden, the employer tells all of the employees that if they’re contacted by a state investigator, they should cover it up and lie about what happened. One employee, Jane Doe, refuses to lie and when she’s served with a subpoena, she tells the truth to the investigators, exposing the employer’s illegal conduct. The employer is angry and fires Jane for testifying against them.

Because the state of Missouri has an interest in making sure everyone tells the truth when they’re under oath and because perjury is a criminal act, this situation is an exception to the at-will employment rule.  Jane very likely has a strong claim for damages against the company.

Retaliation against whistleblowers goes on all the time, unfortunately.  Most people never see it, so they have no idea how common, or damaging, it really is.  The truth is that when an employee goes against its employer’s wishes, most employers will fire that person, whether it’s illegal or not.

Click here to read an article from the Washington Post about how the United States government retaliated against a federal law enforcement officer for exposing the government’s irresponsible actions. This honorable agent did the right thing in an effort to protect the United States public. Yet he was both fired and blackballed in the industry because of what he did.  but he did not give up, and took the government all the way to the United States Supreme Court,  where he won. The Supreme Court held that what he did was protected conduct, and held the government accountable.

This case also illustrates how an employer can, and frequently will, destroy the career of someone they dislike, and how common it is for an employee to get blackballed in a field or industry, in this case law enforcement.

It’s very important to note that with many employment discrimination claims there are extremely short deadlines and statutes of limitations.  To make things even more complicated, it can be very  confusing to properly calculate when these deadlines start and  end.  For instance,  a complaint of illegal discrimination under the Missouri Human Rights Act generally must be filed with the Missouri Commission on Human Rights within 180 days after the act complained of.   But there is an exception to that rule under the “continuing violation” doctrine.

Missouri courts have stated:

Under the “continuing violation” theory, a plaintiff may pursue a claim for an event that occurred prior to the 180-day statute of limitations for filing a claim of discrimination with the MCHR if the plaintiff can demonstrate that the event is “part of an ongoing practice or pattern of discrimination” by the employer. Pollock, 11 S.W.3d at 763.

To take advantage of the “continuing violation” theory, a plaintiff must satisfy a two-part test: (i) “demonstrate that at least one act occurred within the filing period”; and (ii) show that the current claim of discrimination is part of “a series of interrelated events, rather than isolated or sporadic acts of intentional discrimination.” Id. If the plaintiff proves both, then “the 180-day filing period becomes irrelevant . . . [and] [h]e may then offer evidence of the entire continuing violation.” Id.

Tisch v. DST Systems, WD73454 (Mo. App., W.D. 2012)

Due to the complexity of these calculations, if you believe you’ve been wrongfully discriminated against or fired, you should  get an experienced attorney involved as soon as possible to make sure you don’t accidentally let your rights expire.  For instance, with many employment discrimination claims, you’re required to file a proper and timely written “charge of discrimination” with an government agency before you’re allowed to sue.  Failure to properly do that means that your lawsuit will be dismissed and you’ll get nothing.

If you’ve been retaliated against by your employer because you are complained about illegal or improper conduct, please contact us at Curran Law Firm at 417-823-7500 or submit an inquiry to us through our website at CurranLawFirm.com.

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