Uber’s dismissive treatment of employee’s sexism claims is all too typical
Legal mandates rarely disrupt business objectives; they're largely viewed as an inconvenience delegated to HR
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This article was originally published on The Conversation.
Uber has suffered a spate of bad publicity in recent days after allegations of harassment and discrimination from a former software engineer.
In a blog post, Susan Fowler described being propositioned by her supervisor within weeks of starting her job. She complained to the human resources (HR) team. According to Fowler, the supervisor received a “warning and a stern talking-to” but no other discipline at the time because he was a strong performer and it was his “first offense.” Uber then offered her a choice: Transfer to another team or stay and risk a retaliatory performance review from the harasser.
Fowler also described a larger pattern of harassment, discrimination and retaliation. Others reported being harassed by the same manager, apparently contradicting what HR told her. Fowler’s performance review was downgraded, making her ineligible for a subsidized graduate program. When Fowler asked a director about “dwindling” representation of women in the division, he attributed it to their failure to step up and be better engineers. When Uber ordered leather jackets for engineers, they were ordered only for men. Apparently, there weren’t enough women to qualify for a bulk discount.
Fowler complained repeatedly. HR responded with escalating indifference, ultimately suggesting that Fowler herself was the problem.
After Fowler’s post went viral, Uber sought to distance itself from the incident and hired former Attorney General Eric Holder to investigate. CEO Travis Kalanick issued a response:
“What she describes is abhorrent and against everything Uber stands for and believes in.”
Fowler’s story – which Uber neither confirmed nor denied – is not unique in the tech sector, where women remain underrepresented. Women make up only 12 percent of engineers. These women face substantial headwinds. In a survey of women in the tech sector, 84 percent reported being told they were “too aggressive” and 59 percent said they were offered fewer opportunities than male counterparts. The majority also reported receiving unwanted sexual advances. And of those that reported the harassment, 60 percent were unhappy with the company’s response.
The Uber story provides a window into how companies have developed HR infrastructure to address anti-discrimination laws. These structures occupy a marginalized status within organizations.
As I learned while working as an employment lawyer at a large law firm, legal mandates rarely disrupt business objectives. Instead, they are largely viewed as an inconvenience delegated to HR. That explains, for example, why the CEO learned about Fowler’s allegations only after they went viral.
Symbolic structures
Title VII of the 1964 Civil Rights Act safeguards an employee’s right to equal opportunity in the workplace.
It initially protected an employee against discrimination in hiring, pay, promotion and termination. Courts later expanded definitions of discrimination to include harassment. Title VII also protects employees from retaliation for complaining about discrimination or harassment.
As sociologist Lauren Edelman documents in a recent book, employers responded to civil rights laws by setting up complaint processes for employees. She argues that these processes are less focused on meaningfully assuring equal opportunity and more about creating the appearance of compliance.
The ‘first bite is free’
According to Edelman, courts have become complicit in this development, crediting employers for superficial procedures without assessing whether they actually work.
The Supreme Court’s decision in Faragher v. City of Boca Raton is a case in point. The case gives employers a defense in harassment cases if they took reasonable measures to prevent and correct harassment and the victim unreasonably failed to make use of internal complaint mechanisms.
However, courts don’t require employers to do very much to satisfy the defense. Merely adopting and distributing a policy gets an employer credit, as does adopting an investigation process. Courts do not require employers to take strong disciplinary action against the harasser. Rather, they need only take action reasonably calculated to stop the harassment – even if it does not.
In theory, a plaintiff would still have a viable claim if they used the employer’s complaint procedure. But one empirical study found that even short delays in reporting the harassment can be considered “unreasonable” on the victim’s part. So if a victim waits a few months to report the harassment, and the employer goes through the motions of investigating and responding, the victim may be out of luck.