Women and Whistleblowing: Exploring Gender Effects in Policy Design

Abstract

Laws that incentivize employees to blow the whistle when they perceive a financial risk and protect them from retaliation have sharply increased in popularity and have even become commonplace at the state level for fraud related to government money. DoddFrank codified a similar kind of protection for whistleblowers who report private-sector fraud. This Note suggests that states, especially New York, have an opportunity to propose new financial fraud whistleblower legislation in response to the Trump administration’s efforts to reduce the federal government’s active regulatory role in the financial sector. However, the prevalence and potential of such legislation should inspire a closer look at how legal mechanisms target and encourage participation across the employee population. Any program that seeks to encourage participation within an existing context, such as the financial services workplace, risks entrenching bias and inequality if it fails to consider the differential effects of its design across different demographics. This Note therefore addresses whistleblower laws’ implications for women employees’ participation in whistleblowing when they observe financial services sectorbased misconduct. It reviews existing research regarding women’s participation1 in © 2018 Tilton. This is an open access article distributed under the terms of the Creative Commons Attribution License, which permits the user to copy, distribute, and transmit the work provided that the original author(s) and source are credited. * J.D. Candidate 2018, Columbia Law School; M.A. 2013, Georgetown University; B.A. 2012, Georgetown University. I’d like to thank Professor Elizabeth Emens for her guidance in developing this Note, and the staff of the Columbia Journal of Gender and Law for their thoughtful work preparing it for publication. 1 This Note addresses gender only in terms of a binary distinction between men and women. This conception of gender is unfortunately but necessarily narrow because it reflects the state of the existing research on gender effects of whistleblowing mechanisms. See, e.g., Yuval Feldman & Orly Lobel, The Incentives Matrix: The Comparative Effectiveness of Rewards, Liabilities, Duties, and Protections for Reporting Illegality, 88 Tex. L. Rev. 1151 (2010) [hereinafter Feldman & Lobel, Incentives Matrix] (comparing the responses of men as opposed to women in a survey that studied various legal mechanisms, without greater nuance regarding gender identity); Michael T. Rehg et al., Antecedents and Outcomes of Retaliation Against Whistleblowers: Gender Differences and Power Relationships, 19 ORg. Sci. 221, 235 (2008) (studying the frequency of whistleblowing Columbia Journal of Gender and law 339 35.2 whistleblowing and considers how that evidence should shape choices of policymakers who seek to encourage employee reporting while still fostering workplace environments and regulatory structures that value and benefit from women’s voices.