The recent headlines coming out of Uber have been dominating employment law feeds and for good reason. What is taking place currently at this company is such an unfortunate situation that could have been so easily avoided if the employees’ complaints had been properly handled.
According to her written account of what took place, Susan Fowler, a site reliability engineer at Uber, did the right thing. She reported to the human resources department that she was being sexually harassed by her manager, including being sent extremely inappropriate text messages. Ms. Fowler took screen shots of these text messages and showed it to HR. Allegedly, she was told both by HR and upper management that while this was certainly sexual harassment, since it was the manager’s first offense and since he was a high performer, they did not feel comfortable punishing him for what was most likely an innocent mistake on his part. Ms. Fowler was told that she had the option to move to another team. Ms. Fowler later found out that other women at the company were experiencing similar harassment by this same manager, and so when it had happened to her, it was not his first offense as they had represented. When Ms. Fowler and the other female employees went together to complain to HR, their complaints were dismissed. Meanwhile, Ms. Fowler was refused a transfer even though her department was having all sorts of issues. There were a whole series of events that took place that showed that she was being blatantly retaliated against for complaining.
While this is an extreme and very public example of how a company should not handle complaints, it presents as a good opportunity for all employers to review their process for how to properly handle a complaint of sexual harassment.
Complaints are commonplace in any work environment. The common mistake made by employers is in the way employers respond to these complaints. It is the employer’s response that is critical to ensuring that the problem does not escalate and that it can be resolved quickly and effectively.
As of April 1, 2016, the California Department of Fair Employment and Housing (DFEH) enacted regulations requiring employers to develop written anti-discrimination and anti-harassment policies. The regulations state that the policies must (1) be written; (2) list all current protected categories covered under the Fair Employment and Housing Act (“FEHA”); (3) state that the law prohibits all level employees from engaging in conduct prohibited by the FEHA; (4) create a complaint process that ensures confidentiality (to the extent possible); (5) have a timely response; (6) be impartial, fair, thorough, and timely investigation by qualified personnel; (7) allow for appropriate due process; (8) provide for documentation and tracking; (9) ensure that appropriate conclusions will be made and remedial actions will be taken, and (10) allows for a timely response.
By far, the most significant action taken by an employer is to simply listen to the employee and not dismiss any complaint, particularly when such a complaint involves sexual harassment or any kind of discrimination.
When an employee makes a complaint that he or she is being harassed or discriminated against in any way, there should be bells that go off within the human resources department. This is not a complaint that should ever be ignored or dismissed. Even if the complaint does not specifically use the language “harassment” or “discrimination,” any hint or indirect suggestion that this is taking place needs to be dealt with and responded to immediately.
The first step to take after hearing the complaint is to immediately separate the complainer and the alleged harasser. This means two things: first, try and physically separate the two people, ideally putting them in different parts of the office where they will not have to interact; second, take the complainer out of the chain of command. A person complaining that they are being harassed should not have to then report to the harasser, at least until the situation has been resolved.
The next step is to conduct an investigation. In California, it is required that any sexual harassment complaint is responded to by having a “prompt and thorough” investigation. “Prompt” means quickly. The longer an employer waits to act, the more liability they will ultimately face. “Thorough” means to interview not just the two people directly involved in the harassment, but any other employees that may have witnessed the harassment. This can include all the employees in the same department or who work in the same general area. The more information that is gathered, the more reliable the investigation. Having a third party neutral consultant come in to conduct the investigation is advisable. The employee may feel (rightfully) that the employer is biased to the company. Possibly, the employee will be more honest with someone that is not part of the company.
Once the investigation is complete, depending on the findings, the employer needs to determine how to move forward keeping in mind what is best for the company and for the two employees. There can be a range of consequences, including written discipline, counseling, suspension or even termination, all depending on the gravity of the offense.
The way that Uber dealt with Ms. Fowler’s complaint is startling. As stated in Ms. Fowler’s account, the only “separation” was asking Ms. Fowler to move departments. Uber apparently did not conduct any sort of investigation. Instead, Uber dismissed Ms. Fowler’s complaints and even lied to her telling her this was the manager’s first offense. Uber thought it was doing the best thing for the company since this manager was a high performer. By dismissing the complaints, however, Uber is now apparently in serious hot water. Former attorney general Eric Holder was brought in by Uber in an effort to reverse the damage that has been done for the purpose of doing a company wide investigation. Uber could now possibly face serious penalties that can significantly impact the company, if not shut it down entirely. Besides the financial penalties it can now face, the reputation of the company is severely tainted; it is well known that a company can rise or fall based on its reputation.
The takeaway from this story is to take all complaints seriously and make every effort not to dismiss or minimize them. Do prompt and thoroughinvestigations and take action to ensure that sexual harassment is being prevented in the workplace.
Disclaimer: WorkWise Law, PC is not involved in the investigation of Uber and cannot affirm or deny any of the allegations set forth by Ms. Fowler.