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Lessons To Be Learned For Employees And Employers Alike In Viral Blog Post On Sexual Harassment At Uber

On Behalf of | Mar 6, 2017 | Employment |

A couple of weeks ago, a blog post by a former female engineer at Uber went viral, caught the company a whole lot of negative press and precipitated an investigation involving former Attorney General Eric Holder.

The post’s author, Susan J. Fowler, is an engineer and best-selling author who worked for Uber for about a year. In her post, she writes that when a supervisor propositioned her, she complained to human resources but was told nothing would be done because it was a “first offense.” When she persisted in complaining about the way she had been treated, she found herself subjected to negative performance reviews and threatened with termination.



Taking everything in Fowler’s post at face value, it looks like the company missed many opportunities to do the right thing. Here we’ll discuss a few of those key moments taking a look at what the company got wrong and what Fowler got right from a legal perspective.

After the first couple of weeks of training, I chose to join the team that worked on my area of expertise, and this is where things started getting weird. 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.

Okay, let’s just stop right there. I’m guessing that a company like Uber probably has an anti-harassment policy on the books somewhere, but something is definitely wrong if anyone in a supervisory position feels comfortable discussing his sex life with a subordinate on her first day. This may indicate that whatever the company’s policies are, they are not doing a good job of communicating and/or implementing them. Unfortunately, the rest of the story bears that out.

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.

Fowler did the smart (and brave) thing here by immediately documenting and reporting inappropriate conduct. All too often employees hesitate to report harassment, fearing that they won’t be believed or might lose support – or even their jobs – if they start making complaints, (which is exactly what happened to Fowler). Doing the right thing is not always the easy thing. But from a legal perspective (and speaking generally), if you’re an employee who has been sexually harassed, the sooner you complain, the better. If the employer takes prompt remedial action and puts a stop to it, great; if not, you have started amassing evidence you may be able to use as leverage down the road.

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.

Here things start to go seriously wrong. Sexual harassment is a form of sex discrimination and it is illegal under federal law (and under the law of most, if not all states). Sexual harassment by a supervisor will be imputed to the company, so in this situation, the employer needs to make sure the harassment actually stops. Although the company doesn’t necessarily have to fire him at this point, at minimum they should be communicating to him in no uncertain terms that he will get fired if the harassment does not stop immediately.

From Fowler’s post we do not know exactly what (if anything) the company said to the harasser. But there is no good reason to tell Fowler that the company does not “feel comfortable” taking real action. The hidden message is, “we’re not taking your report seriously.” And that is an approach that will be bad for employee morale and for potential liability against the company down the road.

Ironically, a single incident of a supervisor propositioning a subordinate – while definitely inappropriate – is probably not enough to support a legal claim for sexual harassment. In order to bring a hostile work environment sexual harassment claim, the employee has to demonstrate that the harassment was so severe or pervasive as to affect a term or condition of employment, and usually a one-time incident anything short of sexual assault will not suffice.

I was then told that I had to make a choice: (i) I could either go and find another team and then never have to interact with this man again, or (ii) I could stay on the team, but I would have to understand that he would most likely give me a poor performance review when review time came around, and there was nothing they could do about that.

Whatever you do, do not do this. Offering the employee a transfer is okay so long as the transfer does not involve a loss of salary, benefits or career prospects. But telling the employee they are going to get a negative performance review (or following through on the threat) looks like a big red flag for the company for liability for retaliation (more on that in a second). Moreover, handling it this way sends the signal that harassment complaints will not only not be taken seriously, but that anyone who dares to bring them will face harsh consequences. Again, there is no reason for the company to handle it this way, and much less to tell this to the employee.

So I left that team, and took quite a few weeks learning about other teams before landing anywhere (I desperately wanted to not have to interact with HR ever again). Over the next few months, I began to meet more women engineers in the company. As I got to know them, and heard their stories, I was surprised that some of them had stories similar to my own. Some of the women even had stories about reporting the exact same manager I had reported, and had reported inappropriate interactions with him long before I had even joined the company. It became obvious that both HR and management had been lying about this being “his first offense”, and it certainly wasn’t his last. Within a few months, he was reported once again for inappropriate behavior, and those who reported him were told it was still his “first offense”. The situation was escalated as far up the chain as it could be escalated, and still nothing was done.

Sadly, none of this is really surprising, except that Fowler continued to complain about the situation, despite getting, apparently, zero support from the company. Again, this is the smart thing to do, even if the company never responds appropriately, because she is building up evidence of her potential legal claims.

Less than a week after this absurd meeting, my manager scheduled a 1:1 with me, and told me we needed to have a difficult conversation. He told me I was on very thin ice for reporting his manager to HR. California is an at-will employment state, he said, which means we can fire you if you ever do this again. 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. I reported his threat immediately after the meeting to both HR and to the CTO: they both admitted that this was illegal, but none of them did anything.

No, no, no, no. At-will employment means the employer can fire the employee for any legal reason. Firing an employee for complaining about sexual harassment is not a legal reason – it is retaliation and is clearly prohibited under the law.

While the specific elements can vary from one situation to another, in general to make out a retaliation claim, the employee must prove 1) that she engaged in legally protected activity (in this instance, reported sexual harassment); 2) suffered an adverse employment action (like demotion or termination); and 3) a causal connection (a connection between the behavior and action or inaction) between the two. By threatening termination for making a sexual harassment report, the company has put itself in a very dangerous position – for absolutely no good reason.

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