Uber Lawsuit
The allegations have yet to be proven, however if true, they are problematic: After a manager propositions female subordinates for sex, the company’s HR department lets the guy off the hook because “he’s a high-performer.” After a woman complains about sex discrimination, her stellar performance review is secretly changed to include negative remarks. When the woman tells HR that her manager said she’d be fired if she complained to HR again, HR says there’s nothing it can do.
These are allegations leveled at Uber, the ride-hailing app company, in a blog post this month by a former employee—allegations that rocked Silicon Valley and led Uber’s CEO to launch an investigation with the help of a former U.S. attorney general. Uber has not responded publicly to these specific allegations other than to launch the investigation.
Most Human Resources Professionals are conscientious and ethical. In some companies,however the high performer or “rainmaker” is held to different standards, or no standards and his or her behavior is allowed to continue.
In her blog post, former Uber engineer Susan Fowler made allegations of discrimination, sexism and retaliation at the Uber office where she worked in the San Francisco Bay Area. Fowler, who now works for technology company Stripe, wrote that her manager propositioned her for sex her very first day at Uber, that HR managers told her they couldn’t do much because the offender was a money maker. Susan also alleged that HR ignored her complaints when her previously stellar performance review was changed behind her back, and negative comments placed in the review, in retaliation for Susan having reported the behavior to HR.
A day after Fowler’s revelations, Uber CEO Travis Kalanick announced an “urgent investigation” with the assistance of Uber board member Arianna Huffington and former U.S. Attorney General Eric Holder.
How does a large organization, with an HR department and policies in place, make these kinds of mistakes—failing in its duty to protect their assets (the employees) by adhering to the “Protecting Your Assets” steps:
Senior management sets the standard for whether harassment and discrimination claims are taken seriously. Everyone has heard about the former CEO of American Apparel who engaged in the most horrific examples of sexual harassment, and HR who reported to him could do nothing for fear of her job. Consistently, when HR departments ignore allegations of serious misbehavior, they are basically acting consistent with what the senior executive’sdemands.
Fowler, who worked for Uber from November 2015 to December 2016, said that when she learned other women had been propositioned by the same manager—who eventually left Uber—the women went separately to HR, and each was told it was the man’s “first offense.” I testified in a similar case brought by the EEOC v Pizza Hut. Woman after woman reported being subject to the exact same actions by the exact same man. Each time a woman came forward, the General Manager would ask the man if he’d engaged in those behaviors and he would say “NO!”. The General Manager would then report back to the complainant(s) that this was a “He said, She said” since the man denied the behaviors. This is not a “He said, She said”, it’s a “He said, THEY said”!
Back to the Uber allegations of sex harassment and discrimination: When Uber bought leather jackets for more than 120 men but not six women, a director told Fowler that “if we wanted leather jackets, we women needed to find jackets that were the same price as the bulk-order price of the men’s jackets.”
Her manager threatened to fire her for going to HR, Susan Fowler stated, “I told him that was illegal, and he replied that he had been a manager for a long time, he knew what was illegal, and threatening to fire me for reporting things to HR was not illegal.” When she told HR, she wrote, managers in Human Resources agreed that retaliation would be illegal, but did nothing about the threat.
Fowler claims that she presented HR officials with screenshots of text messages that were clear evidence of sexual harassment, It is rather shocking if the response to this type of evidence was to tell Fowler that it was his first infraction, when it clearly wasn’t, and that she had to get over it and move on. In this manner, the HR department failed in their duties to conduct a thorough, complete and objective investigation, to come to a conclusion, to communicate their findings back to Fowler and others with a “need to know” and to remedy the harassment and guard against retaliation.
The HR Department
Often, women or racial minorities are placed in high-level HR roles but are not given real power or autonomy. If a company does not have a tone at the top emphasizing zero tolerance for sexual harassment, HR officials are often powerless because individuals with power … are often deemed to be untouchable. As well, unless the VP of HR or the Chief People Person has direct reporting lines to the CEO, it is doubtful that they have the power and authority to perform their duties without
In a New York Times article about Fowler’s blog post, Ariana Huffington is quoted as saying that Uber would no longer be hiring ‘brilliant jerks.’ I would suggest that her statement include that the company would no longer be retaining ‘brilliant jerks’ either.
Retaliation
Fowler said management blocked her requested transfer to a different team even though she met all the qualifications and had a “perfect performance score.” After discussing the glowing review with her manager, she later learned that it had been changed to include negative remarks. Fowler said she again approached HR, asking to know what had changed after she discussed the review with her supervisor. Eventually, she said, she was allegedly told that “performance problems aren’t always something that has to do with work, but sometimes can be about things outside of work or your personal life.” A manager told her that the negative review would have “no real-world consequences.”
Ignoring Wrongdoing Has Costs
Generally speaking, employers who feel they can’t afford to lose a high-value employee who is a repeated harasser and retaliator often fail to consider the cost of keeping such an employee. This includes the costs of litigation. It includes the lowered morale and productivity of workers who are disillusioned when HR doesn’t act. It includes the cost of replacing disillusioned workers who quit. And it includes the cost to the company’s reputation should stories such as Fowler’s become public.
The only way an HR department can effectively (and legally) deal with a repeat sexual harasser (or other forms of harassment) has to be termination. Individuals with power who believe that they can harass without having any consequences will continue to do so. They believe … that their commercial success makes them indispensable and therefore bulletproof. Such individuals are liability magnets for companies.
A competent HR representative, faced with the kinds of allegations Fowler revealed, should have followed the “Protecting Your Assets” steps:
