109 Iowa L. Rev. 1905 (2024)
 

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Abstract

A critical element in workplace retaliation claims is the whistleblower’s protected activity. This activity often consists of “opposition” activity where an employee internally complains about workplace conduct to a supervisor or Human Resources department. Importantly, federal courts protect these whistleblowers if they have a “reasonable belief” that the reported conduct was unlawful under a federal employment statute.

Assume a legal technicality (via statute, federal regulations, or precedent) renders the reported conduct lawful. Can a whistleblower still reasonably believe the conduct was unlawful? Is the internal complaint still protected opposition activity? Many federal courts answer “no” to these questions. Applying a “hypertechnical” approach, they rigidly assume that reasonable whistleblowers would have discovered, understood, and correctly applied the legal technicality to their situations before objecting to the workplace conduct. If the whistleblower is a law student or lawyer, this approach and its assumptions may be warranted. If the whistleblower is a layperson, the hypertechnical approach makes little, if any, sense.

This Article makes two unique and significant contributions to the literature in this area. First, it presents an interstatutory study of six different federal employment laws to highlight the prevalence of the hypertechnical approach. These laws are the Family and Medical Leave Act of 1993, federal employment discrimination statutes (Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and the Age Discrimination in Employment Act of 1967), the Fair Labor Standards Act of 1938, and the Sarbanes–Oxley Act of 2002. 

Second, this Article argues that federal courts should apply a “Layperson Accommodation Approach” to evaluate a whistleblower’s reasonable belief when a liability-absolving legal technicality exists. This approach eliminates the hypertechnical approach’s rigid (and often questionable or incorrect) assumptions. Instead, it allows a more flexible, case-by-case analysis to evaluate if a reasonable layperson would, in fact, (1) discover the legal technicality relevant to the employer’s conduct, (2) understand it, and 
(3) correctly apply it to their situation before objecting to that conduct.

This approach reflects the same “layperson protective” philosophy that Congress and federal courts have exhibited in the context of determining the validity of signed waivers of federal employment claims. And, it promotes the purpose and policy behind the antiretaliation provisions of the federal employment statutes—to encourage workplace whistleblowing and ferret out employers with retaliatory intent.