Overarmed or underdressed? whistleblowers between anti-discrimination law and freedom of expression
| Published date | 01 September 2023 |
| DOI | http://doi.org/10.1177/13582291231154161 |
| Author | Olivier Leclerc |
| Date | 01 September 2023 |
| Subject Matter | Articles |
Article
International Journal of
Discrimination and the Law
2023, Vol. 23(3) 265–282
© The Author(s) 2023
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DOI: 10.1177/13582291231154161
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Overarmed or underdressed?
whistleblowers between
anti-discrimination law and
freedom of expression
Olivier Leclerc
Abstract
Does retaliation against a whistleblower qualify as discrimination or an infringement of
freedom of expression? In France, whistleblowing legislation has built whistleblower
protection on the model of discrimination. The transposition of the European Directive
2019/1937 of 23 October 2019 on the protection of persons who report breaches of EU
law, reinforced by domestic case law, shifts the balance towards freedom of expression.
Standing at the crossroads of discrimination and freedom of expression, the protection of
whistleblowers is in urgent need of conceptual clarification, which this article seeks to
provide. To this end, the article proposes to consider the status of whistleblower as a
layered legal regime, in addition to an underlying legal status such as employee, civil
servant, journalist or other. The articulation between discrimination and freedom of
expression thereby gains a strategic dimension that is essential to it. This understanding
helps to clarify how discrimination law and freedom of expression can benefit whis-
tleblowers and thus strengthen rather than weaken their protection.
Keywords
Whistleblowers, disclosure, discrimination, freedom of expression, immunity, secrets
European countries’legislation on whistleblower protection is being given a boost by the
entry into force of Directive (EU) 2019/1937 of the European Parliament and of the
Council of 23 October 2019 on the protection of persons who report breaches of European
Union law. With regard to whistleblower legislation, the situation of European states
CNRS, Centre de th´
eorie et analyse du droit (CTAD), Universit´
e Paris Nanterre, France
Corresponding author:
Olivier Leclerc, CNRS, CTAD UMR 7074, 200, avenue de la R´
epublique, Nanterre Cedex 92001, France.
Email: olivier.leclerc@cnrs.fr
varies greatly (Apaza and Chang, 2017;Fasterling, 2014;Lewis, 2010a;Skupie ´
n, 2021;
Thüsing and Forst, 2016;Transparency International, 2013). Some countries like the
United Kingdom (Gobert and Punch, 2000;Lewis, 1998,2001,2010b;Middlemiss,
2017), Australia (Dworkin and Brown, 2013;Hardy and Williams, 2014), Ireland
(Keating and Keating, 2013;Kierans, 2015) have developed detailed legislation. In other
countries, the protection afforded to whistleblowers is significantly lesser, if not non-
existent. While the Directive will provide an opportunity for the countries with advanced
whistleblower protection to adjust their legislation to some degree, its transposition
represents a major step forward for others.
This opportunity to strengthen whistleblowing legislation also provides an occasion
for much-needed conceptual clarification. Whistleblowing legislation indeed encom-
passes two main objectives. On the one hand, it implies granting special protection against
reprisals to people who disclose wrongful acts (whose scope depends on legislation, but
typically involves the violation of the law and risks to health or the environment). On the
other hand, it entails collecting and processing the information disclosed by whistle-
blowers so as to verify and to stop, and possibly sanction, the facts reported (Savage and
Hyde, 2015). Both facets are key features of an effective whistleblowing legal regime: the
whistleblower must be effectively protected, and a proper processing of the reported facts
must be provided so that the disclosure is not simply covered up.
This article examines how these two constituent aspects of whistleblowing are rec-
onciled in French law. France stands out as one of the countries with comprehensive
whistleblower protection legislation, particularly since the law 2016/1691 of 9 September
2016 “on transparency, the fight against corruption and the modernisation of economic
life”came into force (Adam, 2017). In line with what has happened in other countries
(Lewis, 2005), the French legislation on whistleblowers has been built on the model of
protection against discrimination (Leclerc, 2017). Be it for employees, civil servants or,
under certain conditions, military and intelligence officers (Foegle, 2015), retaliation
against whistleblowers has been conceptualized as prohibited differential treatment.
Whistleblowing is thereby treated as a case of discrimination in its own right. Just as no
one may be treated disadvantageously because of their gender, sexual orientation or
origin, to name just a few prohibited grounds of discrimination, no one can be victimized
because they have blown the whistle. The Directive of 23 October 2019 provides a much-
awaited rebalancing of the legal regime for whistleblowing by providing for both the
protection of whistleblowers and the collection, treatment, and monitoring of reports. The
transposition of the Directive has then allowed for a reorientation of French law, which
until then had focused on the protection of whistleblowers and only contained sparce and
allusive provisions on the handling of reports. The law of 21 March 2022
1
and its related
decrees
2
intended to transpose the European Directive into French law now include new
provisions on the “collection and processing”of reports on whistleblowing (Leclerc,
2022a). These provisions reflect the realization that the purpose of the whistleblower law
cannot only be to protect whistleblowers from reprisals, but also to support the expression
of any person acting in the public interest (Toubon and Lagasse, 2019). In doing so, the
new legislation shifts the balance of the legal regime of whistleblowing. The latter is no
longer collapsed solely into the discrimination regime but now stands at the crossroads of
266 International Journal of Discrimination and the Law 23(3)
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