An Ode to Whistleblowers and the Law: Part I (2023)

Wikipedia defines a “whistleblower” as a “person who publicly alleges concealed misconduct on the part of an organization or body of people, usually from within that same organization”. It takes a special person to be a whistleblower, to set aside their own self-interest in favor of what’s right, to stand alone against an entire organization, to willingly become a target for retaliation, ostracism and worse. Some famous whistleblowers include:

1. Lois Jenson: Jenson was the inspiration for the 2005 Charlize Theron film, “North Country”. In 1984, Jenson mailed a complaint to the Minnesota Department of Human Rights complaining about severe sexual harassment she had been experiencing for years while working at a male-dominated Eveleth Taconite Co. mine. Her car tires were slashed a week later. In 1988, Jenson filed the first sexual harassment class action in U.S. history. She won although the case would drag out for 10 years. During the suit, Jenson quit her job and was diagnosed with post-traumatic stress disorder. In 1998, just before another trial was to begin, fifteen women settled with Evelth for $3.5 mil.
2. Jeffrey Wigand: Wigand was the inspiration for the 1999 Russell Crowe/Al Pacino movie, “The Insider”. In 1996, he appeared on CBS’s “60 Minutes” and accused his employer, Brown & Williamson (a cigarette manufacturer), of intentionally adding addictive and/or carcinogenic ingredients to tobacco blends. He was subject to death threats and harassment and was fired.
3. Karen Silkwood: Silkwood was the inspiration for the 1983 Meryl Streep film, “Silkwood”. In 1974, Silkwood testified to the Atomic Energy Commission about slipshod safety standards, falsified inspection records, and mishandling of nuclear fuel rods at the Kerr-McGee plutonium plant which employed her. She died under suspicious circumstances while driving to meet a New York Times journalist to go public with more evidence. Her family later hired the renowned trial lawyer Gerry Spence and filed a civil lawsuit against Kerr-McGee. They obtained a $10+ mil. verdict at trial that was reduced to $5,000 on appeal, but that was then restored by the US Supreme Court. They ultimately settled for $1.38 mil.

There are countless more unsung heroes who weren’t fortunate enough to have books written or movies made about them. But the courage and integrity they show in the pursuit of right can be inspirational. I say this having represented a few of them during my time as an attorney. To be sure, whistleblowers aren’t perfect people. The very qualities that make them heroic also in many cases make them susceptible to a smear defense in a civil lawsuit: determination/stubbornness, courage/recklessness, individualism/disloyalty, integrity/inflexibility, etc. That means whistleblowers can present challenges to any lawyer who decides to represent them. That having been said, the story they have to tell a jury can be extremely dramatic and compelling, making for potentially large or landmark verdicts. And perhaps that explains Hollywood’s love affair with whistleblowers.

Next, in Part II, I will discuss the California, and to some extent federal, laws that protect whistleblowers. The good news is that there are strong protections for whistleblowers, although some recent U.S. Supreme Court decisions have shown disturbing hostility to whistleblowers.