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What we all can learn from Uber’s mistakes in harassment case
KRISTI NELSON
Law Bulletin columnist
Published: April 13, 2017
On Feb. 19, Susan J. Fowler, a female engineer, leveled damning allegations of sexual harassment against her former employer, Uber.
She publicly aired her complaints against the company in an online post, where she alleged she had been sexually propositioned by a manager via the company’s chat platform, among other detailed allegations.
She claims she maintained documentary proof of the harassment. “Every time something ridiculous happened, every time a sexist email was sent, I’d sent a short report to HR just to keep a record going,” Fowler said in her post. She also claimed the company failed to take action against the manager because he was a “top performer.”
Since Fowler’s complaint hit the headlines, two additional female former Uber employees have come forward with similar complaints. All three former Uber employees contend they reported the misconduct to the company’s management and human resources department, but no action was taken.
Their accusations made national news and caused Uber substantial harm to its reputation. Just days after the story broke, Uber’s CEO reportedly called a companywide meeting and apologized for the company culture and for “not properly responding to employee complaints.”
The company has now hired former attorney general Eric Holder and Uber board member Ariana Huffington to spearhead a comprehensive internal investigation into the company’s workplace culture.
The company plans to conclude the internal investigation by the end of the month and make the findings of the investigation public. Huffington recently told reporters, “Whatever the investigation finds will be honored by everyone at Uber.”
While it is certainly premature to make any conclusions about when complaints of sexual harassment were first made or whether any sexual harassment actually occurred, the Uber news story raises an interesting question: Why are some employers afraid to conduct a thorough and truly independent investigation when complaints of workplace misconduct are made?
Instead of digging in to see whether, in fact, there is a problem in the workplace, some employers choose to wear blinders. Some employers fear that uncovering and documenting misconduct will create a “bad record” that will harm the company by exposing it to legal liability.
Let’s examine this reason using Uber as an example.
For the sake of this article, let’s assume at least one of the former female employees lodged her complaint while still employed at Uber. And, let’s assume the company had conducted a prompt, thorough and independent internal investigation of the complaint.
If the investigation uncovered sexual harassment, the company could have taken prompt corrective action against the offender or offenders, as Huffington claims the company will now do. In so doing, the company would have improved the working conditions for all women in the workplace and possibly avoided the media firestorm it now faces.
If the former female employee later filed a sexual harassment lawsuit against Uber, it could have asserted an Ellerth-Faragher affirmative defense and potentially avoided liability.
If, on the other hand, the investigation did not substantiate the sexual harassment complaint, the company still would have sent a strong message to the participants of the investigation that the company takes complaints of sexual harassment seriously. This alone has a deterrent effect on workplace misconduct.
And it often satisfies the complainant to know that the employer investigated the matter.
If the former female employee still aired her complaints publicly, at least the company would be able to defend itself by pointing to the fact that it conducted a prompt and independent investigation.
In sum, under our hypothetical, regardless of the result of the investigation, Uber would have been in a better position than it is now.
So what can we learn from Uber?
When faced with complaints of sexual harassment and other workplace misconduct, employers should not fear the results of a thorough and independent investigation.
Even if the investigation uncovers misconduct, knowledge is power.
Knowledge of the misconduct allows the employer to take prompt remedial action, potentially avoid legal liability and harm to its reputation and improve workplace conditions.
Kristi Nelson is an attorney at Gair Eberhard Nelson Dedinas Ltd., online at gairlawgroup.com. Her practice focuses on commercial and employment litigation and counseling, internal investigations, and compliance matters. She has conducted dozens of sexual harassment and discrimination investigations for corporate clients and taught Workplace Misconduct Investigations as an adjunct professor at John Marshall Law School for several semesters.