Uber is back in the headlines again (See our prior post about Uber’s background check misstep, “Hiring the No. 2 Guy on al-Qaeda’s Hit List: An Uber-Example of Limitations in Employee Background Checks“). This time for recently announcing that it is investigating a former engineer’s sexual harassment claim. But the real news is how this investigation came about and why it is only now being investigated.
Specifically, Uber’s former engineer, Susan Fowler, worked at Uber for approximately three years. She left, however, in December 2016. On February 19, 2017, she published a blog post, “Reflecting on One Very, very Strange Year at Uber.” The damning allegation from this post is that Uber’s human resource department spectacularly ignored her complaints because her alleged harasser was a “high performer.”
What not to do when responding to sexual harassment claims.
According to the Washington Post, Uber’s CEO responded on Twitter that, “What’s described here is abhorrent & against everything we believe in. Anyone who behaves this way or thinks this is okay will be fired.” Here is an excerpt from Ms. Fowler’s post:
On my first official day rotating on the team, my new manager sent me a string of messages over company chat. He was in an open relationship, he said, and his girlfriend was having an easy time finding new partners but he wasn’t. He was trying to stay out of trouble at work, he said, but he couldn’t help getting in trouble, because he was looking for women to have sex with. It was clear that he was trying to get me to have sex with him, and it was so clearly out of line that I immediately took screenshots of these chat messages and reported him to HR.
* * *
When I reported the situation, I was told by both HR and upper management that even though this was clearly sexual harassment and he was propositioning me, it was this man’s first offense, and that they wouldn’t feel comfortable giving him anything other than a warning and a stern talking-to. Upper management told me that he “was a high performer” (i.e. had stellar performance reviews from his superiors) and they wouldn’t feel comfortable punishing him for what was probably just an innocent mistake on his part.
Ms. Fowler was given the option to either find another team so she would not have to interact with the harasser. Or she could stay where she was understanding that her manager would likely give her poor performance reviews and there would be nothing Uber could do about it. Ms. Fowler even notes that one Uber HR representative explicitly said “it wouldn’t be retaliation if I received a negative review later because I had been ‘given an option.’”
Investigate All Discrimination Claims – Even Claims Involving “High Performers”
Forgive the tangent, but it will make sense in a moment. One of the best attorney movies of all time is “My Cousin Vinny.” There is a court scene where the prosecutor is giving a very lawyerly and professional opening statement to the jury. Vinny, played by Joe Pesci, responds with his opening statement, however, by simply saying, “Everything that guy just said is bullshit. Thank you.”
With that segue, if true, Uber’s response to its engineer’s sexual harassment complaint should be considered “BS.” Simply put, both federal and Michigan employment laws prohibit employers from discriminating based on sex and protect employees from sexual harassment in the workplace. Employers are also prohibited from retaliating or otherwise discriminating against applicants or employees for opposing unlawful discrimination in the workplace or making charges, testifying, assisting, or participating in anti-discrimination proceedings.
To hit home this point, our law firm resolved earlier this month a federal lawsuit for reverse race discrimination and sexual harassment. Similar to Ms. Fowler, our client promptly reported the incident giving rise to the claims. Instead, of taking appropriate action, our client was transferred to a less desirable location, received negative performance reviews, and eventually received less income. The harasser ended up keeping his position at the same location.
After successfully defending against two motions to dismiss the case, the matter quickly settled on terms our client was happy to accept. That confidential settlement, however, was made possible, largely, by the employer’s inaction decisions in responding to the harassment claims.
So what these examples should make clear is that a company must have meaningful procedures for investigating employee discrimination complaints. And, unlike the allegations against Uber, employers must thoroughly investigate all discrimination complaints, regardless of who – even high performers – is involved.
For more information about complying with federal or Michigan employment law or investigating employment discrimination claims, contact attorney Jason Shinn. Since 2001, he has represented employers and employees in federal and Michigan courts with claims involving employment discrimination.