Sunday Read: Whistleblowers Fight Discrimination
This Sunday Read celebrates Martin Luther King Jr. Day and discusses anti-discrimination protections and stories of whistleblower who have spoken up about illegal discrimination. Stay updated on whistleblower issues with National Whistleblower Center and guest writer Justin Smulison.
On Monday January 16, the United States recognizes Dr. Martin Luther King Jr. Day. Dr. King believed equity could be realized, through a non-violent fight for systemic change and was a celebrated leader in the U.S. Civil Rights movement, present at the signing of the Civil Rights Act of 1964. The Act has since governed and impacted many areas of law — including whistleblower rights and protections.
King’s call to non-violent action and the passage of the Civil Rights Act has been a crowning achievement of his legacy for decades. The need to non-violently change or expose unjust systems is similarly at the heart whistleblower and qui tam law; wherein individuals expose and speak out against injustice for themselves, those around them and future generations.
NWC is committed to keeping you informed about the status of whistleblowers and the latest updates from around the world. In honor of Martin Luther King Jr. Day, NWC summarizes anti-discrimination laws in this Sunday Read. We also shine an extra spotlight on those who have followed Dr. King’s legacy and had the courage to speak out against discrimination.
Anti-Discrimination and Whistleblower Law
The U.S. Equal Employment Opportunity Commission enforces many laws that protect against discrimination. Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate against someone on the basis of race, color, religion, national origin, or sex. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.
Though the Civil Rights Act has been federal law for nearly 60 years, it is still violated by individuals, organizations and institutions. Violations of anti-discrimination laws — especially systemic ones — are reportable to the agencies listed below at the United States Department of Labor (DOL):
· Occupational Safety and Health Administration (OSHA)
· Mine Safety and Health Administration (MSHA)
· Office of Federal Contract Compliance Programs (OFCCP)
· Wage and Hour Division, and
· Veterans’ Employment and Training service.
The DOL’s Civil Rights Center (CRC) is also in charge of overseeing discrimination laws. It does not matter if you are a customer wanting or needing services; an employee of the business, organization, or office; a person applying for a job; or a member of the general public. If you have contact with a program that is covered by one of the laws, the program cannot discriminate against you.
Violations of anti-discrimination laws, especially systemic violations, are reportable. The CRC offers this poster to explain your rights and where to file a complaint if you believe the law has been violated.
Discrimination at Tesla
Whistleblowers have reported discrimination at electric car maker, Tesla, for years.
One of the biggest discrimination suits of 2021 was ruled in favor of Owen Diaz, former elevator operator at Tesla’s factory in Fremont. Diaz, who is black, filed a suit against the electric car-maker for facing a hostile work environment where employees drew swastikas and repeatedly called him racial slurs. A federal jury in San Francisco initially ordered Tesla to pay Diaz $137 million for the racist abuse in 2021, but Tesla challenged the verdict and in 2022 successfully had the award cut to $15 million.
Diaz’s lawyer, Larry Organ, the founder of the California Civil Rights Law Group, said in an NPR interview that the reduction was in line with the law’s maximum award amount.
“Mr. Diaz showed great courage in standing up to a corporation like Tesla, which was fighting tooth and nail to beat him,” Organ told NPR. “Mr. Diaz’s accomplishment should not be forgotten just based on a reduction in the verdict on legal principles.”
Allegations of Tesla’s toxic culture and unethical work environment have created a trail of discrimination suits followed by retaliatory acts. In 2022, NWC’s Executive penned an op-ed recognizing these notable suits including:
- Steven Henkes, a former Tesla field quality manager, told the SEC in 2019 that Tesla failed to properly disclose to shareholders and the public how fire risks associated with solar panel system defects. Henkes alleged that this misconduct occurred in 2016, the same year Tesla required employees to sign an overly broad confidentiality agreement and Musk was penalized for coercive anti-union texts. Henkes was fired from Tesla in 2020. He claims his termination was in retaliation for raising safety concerns.
- Christina Balan, a former Tesla Engineer, reported concerns about safety and business practices at Tesla. Balan’s concerns about the potential safety hazards in the then-upcoming Model S luxury sedan, and about contracts she believed were awarded more on friendships with suppliers than on quality and price in 2014. Rather than fix the problem, Tesla forced Balan to quit. And, in 2019 the Company accused Balan of breaking the law. Since then, Balan has been in court fighting Tesla’s attempt to use arbitration clauses in her contract to silence her retaliation suit. In March 2021, the Ninth Circuit dealt a major blow against whistleblowers when it ruled in Tesla’s favor.
- Jessica Barraza, a former Tesla factory employee, was forced to endure sexual harassment so severe that it resulted in a Post-Traumatic Stress disorder diagnosis. Barraza sued the company, and her suit inspired others to come forward.
- Michala Curran, a Tesla factory employee, alleged sexually harassment starting in her first week at the Tesla factory. As a result, she joined a lawsuit brought by a group of her colleagues. Tesla’s response? Push Curran into arbitration.
A Profile in Courage: Coast Guard Cmdr. Kimberly Young-McLear
Coast Guard Commander Kimberly Young-McLear, Ph.D. embodied all the positive traits of a whistleblower for exposing gross misuse of power in how the Coast Guard handled bullying, harassment, and discrimination allegations. An investigation by the Department of Homeland Security Office of Inspector General in 2018 substantiated her initial Equal Opportunity claim that she had been retaliated against for her whistleblowing activity.
As reported in 2019, staff of the House Committee on Oversight and Reform and the Committee on Homeland Security met with leadership of the Coast Guard Academy to follow up on issues of racism and retaliation at the academy, specifically noting Young-McLear’s case.
One key result of her whistleblowing was resulted in the closing of investigative loopholes for these types of claims by Coast Guard service members and federally employed civilians.
Still serving the Coast Guard, she appeared on Whistleblower Network News’ series Whistleblower Voices in 2022 to discuss her experience.
“What a lot of people really don’t understand about whistleblowing is the immense toll that it really takes on us as individuals…whether you are speaking out over discrimination injustices or things related to regulatory or financial [matters],” she said during Episode 6. “That act of courage is so taxing on any person and I think that what we can do better as a whistleblowing community is to be there for each other.”
As for encouraging people to come forward, McLear added to know what you are grounding yourself on.
“Everyone has their own motivations,” she said. “I think of all the generations of freedom fighters and amazing humans who came way before me, my parents are included, they have sacrificed so much to make our lives a little bit better. I just tell myself the least I can do, is do my part if there’s something that’s not right. Speak up and deal with the consequences — and hopefully those consequences are a favorable outcome — but that’s what grounds me.”
Support NWC
NWC fights to bolster whistleblower programs and raise awareness about the value of anti-discrimination whistleblowers. As a 501(c)(3) non-profit our work is made possible with the support of our generous donors. Please consider donating $50 today to help us continue this important work.
This story was written by Justin Smulison, a professional writer, podcaster and event host based in New York.
This article was sent as part of NWC’s “Sunday Read” series that aims to educate supporters about whistleblower stories and whistleblower legislative or policy initiatives and current events. For more information like this, please join our mailing list.
