The Duty Speech Loophole in Whistleblower Protection: Why We Need Retroactive Causality to Avoid Moral Luck

Key whistleblowing legislation in the US and EU remains ambiguous about protection for a specific (but important) group of employees, namely Role-Prescribed Reporters (RPR). An RPR is any worker who reports wrongdoing as part of their normal job duties, also known as duty speech. These workers are not whistleblowers when they report wrongdoing as part of their normal job. When they are neglected or experience retaliation they may report the same wrongdoing through a formally designated whistleblowing channel. We demonstrate how such situations amount to loopholes in whistleblower protection legislation. We discuss loopholes in the US (Whistleblower Protection Act, False Claims Act, Dodd-Frank Act) and the EU (Ireland, France, the Netherlands), in which an RPR does not enjoy whistleblower protection for any retaliation that occurred prior to using a formal channel. We argue the RPR exerts their function in a setting of uncertainty that, if they are unlucky, can lead to unfairness and situations of painful ‘agent-regret’ (which is an essential aspect of ‘moral luck’). Insofar as this uncertainty is perfectly avoidable, it is ethically unacceptable. We evaluate possible solutions and argue that reducing the scope of moral luck for RPRs (duty speech professionals) by retroactively attributing them a whistleblower status in the case of retaliation would close the currently prevailing legal loophole.