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Former employee alleges HR turned a blind eye to sexual harassment, discrimination and retaliation
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 must be some of those textbook examples—probably from the 1950s—on how to never, ever run an HR department, right?
No. 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
[SHRM members-only resource: Sexual Harassment Policy and Complaint/Investigation Procedure]
"While there are many conscientious and capable HR officials, we often encounter situations in which the HR department has essentially enabled harassment of [this] type to persist with no consequences to the harasser," said Debra Katz, partner with Washington, D.C.-based Katz, Marshall & Banks, who spoke generally about her own experience with clients. She has litigated employment discrimination, civil rights and whistle-blower protection cases for more than 30 years.
In her blog post earlier this month, 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 high-performer, and that HR ignored her complaints when her previously stellar performance review was secretly doctored with negative remarks in apparent retaliation for her having gone to HR.
"Some of the …[reported] behavior regarding how Ms. Fowler and other women [were treated] when they raised more general workplace concerns is really astounding," said Patricia Wise, a partner with Toledo, Ohio-based Niehaus Wise & Kalas Ltd. and co-chair of the Society for Human Resource Management's Labor Relations Special Expertise Panel. "Stunning ignorance."
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.
Tone from the Top
How could a large organization, with an HR department and policies in place, make these kinds of mistakes—failing in its duty to protect workers from harassment and to investigate and discipline offenders?
Often the tendency to overlook this behavior comes from top management, said Stephen Paskoff, president and CEO of ELI, an Atlanta-based company that helps organizations address bad behavior in the workplace.
"It's inconceivable to me that any group of HR managers could be so clueless as to not recognize the issues, if they occurred, as grave problems," he said. "In my experience with the kinds of behavior Ms. Fowler identified, it is likely not that managers are clueless about the responsibilities of HR representatives, but rather that they are acting in line with the expectations of the organization. When HR departments ignore allegations of serious misbehavior, they are basically acting in line with what the organization's cultural demands."
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."
She also wrote that a director explained the dwindling numbers of women in her organization by saying "the women of Uber just needed to step up and be better engineers."
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, she wrote. "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 there conceded retaliation would be illegal, but did nothing about the threat. [SHRM members-only platform: SHRM Connect]
"Fowler presented HR officials with screenshots of text messages that were clear evidence of sexual harassment," Katz said. If Fowler's accusations are true, she said, "it is shocking that 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 condoned sexual harassment and aided and abetted the retaliation that ensued."
The Toothless HR Department
Katz said that, in companies with histories of sexual harassment, HR managers often are powerless to act.
In Katz's experience with her own clients, she said, "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."
Wise agreed. "Sometimes, HR has only apparent authority, and a more senior officer, even a CEO, permits … harassing behavior," she said.
If the harasser is seen as a high income producer or a high performer, the company can be less likely to treat claims of sexual harassment with disciplinary action, Katz said. Instead, the "victims of harassment—which are almost always women when they work in male-dominated professions like Fowler does—are counseled about their behavior, retaliated against if they persist with complaints, and eventually managed out."
Said Paskoff: "In my view, you cannot be a high-performing employee if your behavior violates core values. It is interesting to note that [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."
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 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."
"I have seen situations like this many times," Katz said. "I have also seen managers attempt to justify such outrageous conduct by insisting that it would not affect the individual's career in any way and that the employee was too rating conscious."
If a company believes a positive evaluation should be revised, such as by confronting performance issues that the evaluating manager dodged—then the employee being reviewed should be told of the revisions, said Karen Kruse, an employment law attorney in Seattle.
"Leaving legitimate performance concerns uncommunicated does nothing to resolve them, and it can lead to later allegations that the company's revisions were merely pretexts for discrimination or retaliation," she said. "Moreover, many state laws give employees the right to access materials in their personnel files so it would be misguided to think that such revisions could be made in secret."
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, Katz said. This includes the costs of litigation should an employee sue. 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 to deal with a recidivist harasser and retaliator—whether the person is a high-performer or not—is to take appropriate disciplinary action, which in this case sounds like it should have been termination," Katz said. "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 investigated them, brought them to the attention of senior leaders or managers, and made it clear to higher-ups how serious the claims were in terms of potential legal repercussions, the values of the organization, and the overall impact, ultimately, on business performance, Paskoff said.
"Organizations faced with such allegations act quickly to find out what occurred, to resolve such issues fairly, and to make sure that those who have misbehaved are held accountable and that there is a broad understanding—via communication and education—that such behavior will not be tolerated, should be reported, and actions will be taken." Was this article useful? SHRM offers thousands of tools, templates and other exclusive member benefits, including compliance updates, sample policies, HR expert advice, education discounts, a growing online member community and much more. Join/Renew Now and let SHRM help you work smarter.
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