My friend Paul Taylor of the Truckers Justice Center shares this beautiful quote that I will be using in briefs for my clients:
"Today’s employers, even those with only a scintilla of sophistication, will neither admit discriminatory or retaliatory intent, nor leave a well-developed trail demonstrating it. … It is a simple task for employers to concoct plausible reasons for virtually any adverse employment action ranging from failure to hire to discharge."
Raymond v. U.S.A. Healthcare Center-Fort Dodge, LLC, 468 F. Supp.2d 1047, 1054 (N.D. Iowa 2006).
Terry Raymond claimed that she was fired in retaliation for filing a workers compensation claim. The nursing home claimed it fired Raymond for mishandling a discovery of missing morphine from a medication cart. Judge Bennett continued his explanation of his decision to deny the employer’s motion for summary judgment:
This is especially true, because the very best workers are seldom employment discrimination plaintiffs due to sheer economics: Because the economic costs to the employer for discrimination are proportional to the caliber of the employee, discrimination against the best employees is the least cost effective. Rather, discrimination and retaliation plaintiffs tend to be those average or below-average workers — equally protected by Title VII, the ADA, the ADEA, or the FMLA and state anti-discrimination and anti-retaliation laws — for whom plausible rationales for adverse employment actions are readily fabricated by employers with even a meager imagination.
My experience suggests the opposite for whistleblower cases. Whistleblowers tend to be those that are smart enough to know the law, or at least the difference between right and wrong. They also have sufficient commitment to the organization’s mission to stand against the boss. Too many bosses will chose to retaliate because they cannot stand the challenge to their power. In this context, the challenge is a more serious threat to the boss when the whistleblower is more knowledgeable and skilled.