Federal whistleblower protection laws, including the whistleblower protection provisions of the Sarbanes-Oxley Act, prohibit many forms of retaliation, including:
- termination of employment;
- constructive discharge;
- failure to promote; and
- other forms of discrimination against a whistleblower in the terms and conditions of employment.
In a seminal decision, the DOL ARB clarified the broad scope of actionable adverse actions:
To settle any lingering confusion in AIR 21 cases, we now clarify that the term “adverse actions” refers to unfavorable employment actions that are more than trivial, either as a single event or in combination with other deliberate employer actions alleged. Unlike the Court in Burlington Northern, we do not believe that the term “discriminate” is ambiguous in the statute. While we agree that it is consistent with the whistleblower statutes to exclude from coverage isolated trivial employment actions that ordinarily cause de minimis harm or none at all to reasonable employees, an employer should never be permitted to deliberately single out an employee for unfavorable employment action as retaliation for protected whistleblower activity.
Williams v. American Airlines, ARB No. 09-018, ALJ No. 2007-AIR-004, slip op. at 15 (Dec. 29, 2010) (emphasis added).