Since 1999, when the Supreme Court first created an affirmative defense for supervisory harassment that required employers to prove that they have effective policies and procedures in place to respond to complaints of harassment, the EEOC has provided detailed guidance on what those policies and procedures should look like. This guidance is also offered in a form tailored for small businesses. The guidance is free and available on the EEOC’s public website.
The Society for Human Resources Managers likewise provides a variety of resources to its members, including sample policies and investigation procedures. A simple Google search for “sexual harassment training” yields 64,000 hits, leading to a variety of online and in-person services for training on harassment and techniques for prevention and investigation of complaints.
It is simply not credible that any employer covered by Title VII or any human resources professional is ignorant of the ordinary, common-sense principles that, when an employee complains that her supervisor has propositioned her for sex and provides messages to demonstrate the unwelcome advance, it should take immediate steps to protect the employee while it investigates and then mete out appropriate discipline to the harasser.
And, yet, Susan Fowler has described a very different reaction to her complaints to Uber’s HR department.
Sexual Harassment at Uber
In a blog she posted on Feb. 19, 2017, Ms. Fowler, a site reliability engineer, gave an account of her experience of sexual harassment at Uber and the company’s egregiously inadequate response to such complaints. Ms. Fowler recounted that on her first day with her new team at Uber, her manager sent multiple messages through the company chat system telling her he was in an open relationship and looking for women to have sex with. Reasonably understanding that the purpose of these messages was to proposition her for sex, Ms. Fowler immediately went to HR to report him. HR and upper-management officials told Ms. Fowler that the messages clearly constituted sexual harassment, but they would not be comfortable doing anything other than giving her manager a stern talking to because this was his first offense and he was a “high performer.”
HR told Ms. Fowler that she could choose another team or stay where she was, but if she continued to work with this manager, he would probably give her a poor performance review, and they could do nothing about it. When Ms. Fowler changed teams she met other women who shared similar experiences of harassment from Uber managers, including accounts about the same individual that she had encountered. Several of the women decided to contact HR to complain, and when Ms. Fowler met with HR to discuss her former manager’s conduct again, the representative said no action could be taken because there had been no other complaints about her harasser. After Ms. Fowler left Uber and made her complaints public, Uber hired former Attorney General Eric Holder to investigate her allegations.
The Influence of Corporate Culture
If Ms. Fowler’s description of the HR officials’ response to her complaint is accurate, it reveals a problem more egregious than a single manager seeking to convince his subordinates to have sex with him. The failure to investigate Ms. Fowler’s complaint, the lies to protect the harasser (i.e., that this was his first offense), the explanation that he could not be disciplined because he was a high performer and the bald assertion that, if he retaliated against her by giving her a poor performance review, the company could do nothing about it, all reflect stunning departures from basic and well-established principles for managing harassment complaints.
The investigation currently underway may reveal why Uber’s HR personnel exhibited such a cavalier response to the harassment complaints about this particular manager. But even without knowing the precise reasons for their dereliction, it is reasonable to posit that the top leadership of Uber has not conveyed a consistent message that harassment of any employee by any employee will not be tolerated. Had that message been made clear, it is inconceivable that HR employees would decline to recommend disciplining a harasser or would preemptively condone his foreseeable retaliation on the ground that he is a high performer.
Judging by the reports of the HR officials’ conduct in Ms. Fowler’s case, it would appear that Uber has made clear that HR is to minimize harassment complaints, encourage women whose managers prey on them to move on to a new manager, and do nothing but talk to the accused harasser to warn him someone has complained about his behavior. If this policy was communicated to Uber’s HR personnel, whether expressly or through implication, it is possible that the HR staff were aware of their anti-discrimination and anti-retaliation duties under the law, but conformed to Uber’s harassment culture for fear of repercussions if they did not.
Retaliating Against HR Personnel
Despite federal and state laws prohibiting discrimination and retaliation, HR employees who offer support to a person complaining of harassment, investigate to confirm the harassment occurred, and then recommend that the harasser be suspended or terminated, sometimes face discipline or termination for undermining the interests of the company.
When this occurs, HR managers who have been fired after processing harassment complaints and advocating discipline of the harasser may file retaliation claims of their own. In one such case, an employee counselor encouraged an employee to file a harassment complaint, and after the company settled the harassment victim’s case, it fired the counselor on the ground that his assistance to the complainant had “placed the entire operation at risk” by opening the company to liability. When the counselor filed a retaliation suit, the employer argued that HR personnel and other managers who handle such complaints are not protected by the anti-retaliation provisions of Title VII because they are just doing their jobs, not engaging in protected opposition to discrimination or harassment.
This doctrine is known as the “manager rule” and requires that employees whose jobs involve processing internal complaints must “step outside” their normal job duties and take much more affirmative steps in expressing opposition to discrimination before their conduct can be considered protected activity. In the case above, a federal court of appeals rejected that argument, ruling that the doctrine has no place in Title VII jurisprudence because of the statute is intending to broadly prohibit retaliation related to employment discrimination. DeMasters v. Carilion Clinic, 796 F.3d 409 (4th Cir. 2015). The EEOC has also rejected this doctrine, emphasizing that all employees who engage in opposition activity are protected from retaliation, even if they are managers, human resources personnel, or other equal employment opportunity advisors.
HR personnel should be aware that in many cases the law prohibits their employers from retaliating against them if they take steps to address discrimination or harassment against other employees, or convey their views to company leadership that the challenged conduct violates the law.
Even more important, company leaders should send an unequivocal message that harassment will not be tolerated. While some executives and managers may believe the rationale offered by Uber’s HR personnel to Ms. Fowler that discipline a high performer will harm business, this short-sighted view often ultimately entails far more negative consequences than the possible loss of a high performer. Companies who ignore, or even sanction, harassment can face litigation costs, damage to employee morale, loss of other good performers who realize they are not valued, and a tarnished reputation with consumers, investors and the general public when stories like Ms. Fowler’s come to light.