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COMPENSATING FOR DAMAGES WHEN WHISTLEBLOWER RETALIATION BECOMES A SERIOUS INJURY

Updated: Mar 8, 2023

In this article, which has been inspired by the research recently published in the volume “The Psychosocial Impacts of Whistleblower Retaliation,” Jacqueline Garrick explores the psychosocial harm whistleblowers may suffer as a result of the retaliatory tactics adopted by employers as well as the related institutional dysfunction that are created and perpetuated. It also advocates the use of a new perspective to hearing whistleblowing complaints using a right-doing approach.

Fraud, corruption, wrongful deaths, trafficking, environmental degradation, and other forms of misconduct trigger a cognitive process in the observer who then feels compelled to blow the whistle. Whistleblowing is dependent upon the character and virtue of the employee. It begins with a sense of right or wrong that is ingrained in childhood, learned as a student, and developed as a professional. Sometimes it is an act of courage, a place of privilege, or sheer naivete. When employees first see something wrong at work, they experience an initial sense of ethical dissonance that disturbs their beliefs in their organization and their own position as either complicit, bystander, or protector. On such occasions, whistleblowers choose to be protectors in the face of harm usually against others, such as patients, beneficiaries, children, or taxpayers. Healthy organizations should welcome these disclosures as a necessary means to an end. They may invest in investigations and adopt solutions so that the protector never experiences the full gamut of the whistleblowing process.


However, when organizational perpetrators are involved in criminal activities including corruption, fraud, or other types of mismanagement, they are prepared to deal with a potential whistleblower. Before the employees know it, they are engaged in an adversarial process with the organization they once valued and relied upon to meet their individual and family’s physiological needs. The employees find themselves in a quandary that builds as the toxic tactics of retaliation are used against them. The employer that does not want the disclosure to enter into the public domain usually attempts to silence the whistleblower before the crimes are unveiled. Most employees begin their whistleblowing internally. It is usually only after they are ignored or blamed that they may go to law enforcement, elected officials, or journalists to expose the truth. Only at that point, whistleblowers become fully aware of the threats against them and the level of stress that they suffer. They may experience the fight, flight, freeze, or fawn [CG1] response to the trauma and the moral injury that sets in from being betrayed. A person experiencing a traumatic event, such as workplace bullying can respond to the attack by fighting back (whistleblowing) or by ghosting the organization by not going back to work (bystanding). If they freeze, the employee will accept the abuse (victimizing) as normal or deserved (gaslighting). Someone who fawns is likely to become a collaborator in the wrongdoing and potentially mob or shun others who whistle blow.


But to understand the full nature of the trauma, we must first unpack the toxic tactics of retaliation. In developing the Whistleblower Retaliation Checklist (WRC) to assess the level of psychosocial impacts an employee might suffer, a literature review and a survey was conducted. This led to the publication of The Psychosocial Impacts of Whistleblower Retaliation: Shattering Employee Resilience and the Workplace Promise in 2022. The writer of this article and her co-author - Martina Buck - found that the tactics associated with retaliation were: Gaslighting, Mobbing, Marginalizing, Shunning, Devaluing, Double-binding, Career Blocking, Counteraccusing, and Bullying (see the table below for a description). Each of these tactics could be understood as a unique domain and indicators could identify their impact on the psychosocial functioning of the employee. The related symptomatology can be translated into criteria for posttraumatic stress disorder (PTSD), depression, substance abuse, and/or suicide. Other factors associated with the aftereffects of retaliation can lead to unemployment or under-employment, poverty, homelessness, divorce, and social disenfranchisement, which can complicate resilience and recovery.


Furthermore, there can be a gap in clinicians’ understanding of how to diagnose and treat a patient with PTSD when the onset is Workplace Traumatic Stress (WTS). The Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, Text Revision (DSM-5-TR) requires that adults exposed to trauma must endure “exposure to actual or threatened death, serious injury or sexual violence.” The “serious injury” in accordance with criterion A(exposure to actual or threatened death, serious injury or sexual violence by directly experiencing, witnessing, or learning about the trauma or experiencing repeated or extreme exposure to adverse details of the event) suffered by employees often relates to two sets of circumstances; the first is the wrongdoing that they witnessed perpetrated by their organization and the second injury is the emotional abuse and maltreatment they encounter after the disclosure. The wrongdoing itself can be traumatic in nature, such as knowing that there are wrongful patient deaths, water contamination in a city, fraud against taxpayers or shareholders, or victims of human/wildlife trafficking. When such harm cannot be prevented through the disclosure process, whistleblowers feel guilty and ashamed of their ineffectiveness. The second injury comes when their own livelihoods are put on the line and they are emotionally abused. Bullying has been added to the DSM-5-TR as a feature of PTSD when there is a “credible threat of serious harm.” This kind of threat can be in the form of firing, demoting, smearing, or harassing as it has a clear impact on someone's psychosocial-economic status. When considering bullying as emotional abuse, there are further descriptions found in a later chapter of the DSM-5-TR on Other Conditions that may be a Focus of Clinical Attention. This becomes significant when considering WTS because the guidance in this section is to include the condition “if it plays a role in the initiation or exacerbation of a mental disorder.” Thus, reviewing the definition of Adult Abuse by Nonspouse or Nonpartner and Occupational Problems (i.e. discord with a boss, a hostile work environment, and so on), it is comparable to the WRC Domains that enumerate the hostile work environment caused by retaliation, discrimination or harassment. The following table is used to demonstrate the WRC Domains to language in the DSM-5-TR:

Once the conditions and severity of a hostile work environment can be understood, diagnosed, and treated, it can be evaluated as causing a disability. Mental health parity has long been a struggle when seeking compensation for psychological harm. When evaluating permanent impairment for disability compensation, brain functioning and its effect on behavior are considered. When mental disorders are the result of work-related conditions, evaluators must determine the likelihood that someone could return to work and how willing is the employer to modify working conditions or opportunities for the employee to successfully return to work are critical factors. When the workplace has been hostile and the source of the disorder, it is unlikely that the employee will be able to return to work or find future sustainable gainful employment because of the interference of symptoms to their functioning. PTSD is known to be a chronic condition that can be severe enough to render a person unable to return to work because of its association with a person’s inability to concentrate, avoidance of stimuli (trigger recall of the traumatic experience), hypervigilance to safety and security, isolation, angry outbursts, nightmares, flashbacks to events, and easily startled responses. To correlate the toxic tactics of retaliation, the following hypothetical scenario is shared as an example:


Terry is a 45-year-old employee who has worked in the same organization for 15 years. Terry grew up in town and has been engaged in many civic and religious groups along with the family. Prior appraisals have always been excellent, and the workplace was enjoyable, affording friendships, and fair pay. Terry identifies fraud. Beneficiaries of the organization are being cheated. They are community neighbors. Issues are raised with the immediate supervisor but there is no response. So, Terry reports to higher-level managers who then open an investigation. Terry is berated to stop talking about the “imaginary” fraud, belittled as over-reacting, and humiliated in front of others. Terry becomes the source of the investigation, stalked, and blamed for all of the problems. Managers move Terry to another office isolated from the team. There is no computer to work from and resources are removed with new assignments in unfamiliar areas, so failure is inevitable. Terry starts to have difficulty sleeping, cannot concentrate, feels depressed and anxious all day, and calls in sick to avoid confrontations. Co-workers who were longtime friends stop talking to Terry and no information about projects or events is shared. Then one day, Terry is frightened and surrounded by managers and security who do not let Terry touch anything while personal belongings are packed, and Terry is escorted off of the property in front of everyone. Terry files a wrongful termination and retaliation complaint with the authorities. Terry empties savings accounts, sells properties, and hires attorneys while unable to find another professional job or connect with hiring managers in the area. Without income, family members must help out, court cases drag on for years, and quality of life diminishes. Terry has nightmares about the perpetrators, avoids situations that have reminders of work, and fears running into people so quits all previously enjoyed activities. Migraines become more common, and Terry feels guilty that the fraud against neighbors was not stopped while the family has lost socioeconomic security. They use a food bank and social services to survive. Terry ruminates about the stressors of the case and contemplates suicide - thinking my family would be better off without me.


In such a life, the psychological harm was caused by the employer. The WRC helps the employee (and a legal team) identify the specific actions taken against them with a nexus to the symptoms of PTSD and other disorders. In such cases, the employee should be owed compensation for their injury. When patients become plaintiffs and seek damages for “pain and suffering,” “mental anguish,” or “emotional distress,” they are exposed to the subjective reasoning of a judge or a jury that has to decide if the case presented justifies compensation. Proceedings have resulted in awards that range from $20,000 to half a million or more in the United States if it is not appealed. In comparison, the US Department of Veterans Affairs (VA) can award a veteran who experienced personal trauma, bullying harassment, discrimination, hazing, or retaliation a 100% disability, which equates to an average annual non-taxable payment of approximately $43,200.[1] Given that most veterans leave military service in their 20s, it is likely that they will live another 50 years. At the current rate and without adjustment for inflation or consideration of any other benefits and services that means that the VA lifetime valuation is over $2 million. This is a much greater rate of compensation than most judicial awards, which are inconsistent and taxable lump sums. VA rates each disability using a standardized Rating Schedule and an exam template.


The challenge for the whistleblower and the legal team is to make the case that the retaliation was so severe that the mental health of the victim is so impaired that their quality of life has been forever changed. Although some other standardized tests and tools can inform a mental status evaluation, the WRC is the only tool being introduced that can identify the specific toxic tactics of retaliation and correlate those factors to the onset of symptoms and psychosocial deterioration. Ultimately diagnosing retaliation and equating its pecuniary damages to a lifetime loss of earnings capacity and diminished quality of life is to make the victim who stuck their neck out feel restored. It is also a means by which to hold perpetrators accountable and perhaps to deter future grafters.

[1] For this analysis, the VA Compensation Table for 2023 was used and the rate was rounded off to the nearest dollar based on a single veteran.


Suggested citation


Bluebook: Jacqueline Garrick, Compensating for Damages When Whistleblower Retaliation Becomes a Serious Injury, CORPORATE CRIME OBSERVATORY, (March 2, 2023),

Harvard: Garrick, J. (2023) ‘Compensating for Damages When Whistleblower Retaliation Becomes a Serious Injury’. Corporate Crime Observatory. Available at: www.corporatecrime.co.uk/post/whistleblower-psychosocial-harm

OSCOLA: Jacqueline Garrick ‘Compensating for Damages When Whistleblower Retaliation Becomes a Serious Injury’, (Corporate Crime Observatory, March 2023),<www.corporatecrime.co.uk/post/whistleblower-psychosocial-harm>


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CCO Opinion Jacqueline Garrick (final)
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