Federal whistleblowers gain broad protection despite concerns about national security

After considering the Federal government’s forceful national security argument, the Supreme Court – yet again – took an expansive approach to retaliation claims in a recent and high-profile case. In that matter, Dep’t of Homeland Security v. MacLean, the Supreme Court interpreted whistleblower law liberally even though the employee conduct at issue plainly violated a Federal regulation.

The plaintiff in MacLean was a Federal air marshal who publicly disclosed that the Transportation Security Administration decided, as a cost-cutting measure, to remove air marshals from certain long-distance flights in the face of reported national security threats. Although such disclosure by the plaintiff in MacLean violated a regulation promulgated by the employing agency, the Supreme Court nonetheless ruled that the Whistleblower Protection Act, 5 U.S.C § 2302, still protected the plaintiff. To that end, the Supreme Court reasoned the disclosure in question was not “specifically prohibited by law.”

In short, MacLean establishes that conduct must be specifically barred by a statute enacted by Congress before an employee will lose whistleblower protection under Federal law. Although MacLean technically only applies to employees covered by Federal whistleblower law, the case clearly reflects a long-standing and ongoing trend of broadly construing and robustly enforcing anti-retaliation protections, whether under employment law or civil rights statutes. That is a good development for workplace fairness, specifically, and the rule of law, generally.