Uber and the EEOC Settle Their Differences

By: Amy Epstein Gluck

Way back when, i.e., in February 2017 and pre-#Metoo, an Uber employee published an online (i.e., very public) expose of what she considered to be a toxic culture at Uber and management’s failure to do anything about it—especially when alleged sexual harassment involved a rainmaker.

I wrote about it here and explained that a company that fails to promptly and thoroughly investigate a claim of sexual harassment or take corrective action to stop the offensive behavior risks a knock on the door from the U.S. Equal Employment Opportunity Commission (EEOC) and some serious liability.

Indeed it did.

The 2017 (winter, before #Metoo) Takeaways

At the time, I suggested several action items. You know them. You’ve read them here before. Employers should:

1)  Have a clear, no-tolerance sexual harassment policy set forth in your employee manuals and handbooks; ensure it is disseminated throughout your company and understood;

2)  Have a specific procedure for investigating any claims of sexual harassment and follow it, documenting the process along the way;

3)  Train your employees, human resources personnel, and executives about EEO policies and laws. But remember, as Rich has said, training alone “cannot change a workplace culture in which sexual harassment is tolerated — or ignored.”

4)  Encourage reporting of sexual harassment and convey that your company would not retaliate (i.e., take an adverse action) in any way against any person who reported sexual harassment; and

5) Document extensively any employee’s claim of sexual harassment or sex discrimination as well as the steps you take to stop and prevent it.

Fast-Forward to Now

I’ve supplemented these take-aways over the past almost three years years to add detail, as increased sexual harassment claims were reported, and include other takeaways:

  • Your anti-harassment policy should include specific misconduct and examples, i.e., no sexual or sexist jokes, sexual puns, sexual innuendo, smacks on the butt, grabbing of any body parts, etc.
  • If you are investigating misconduct, continue to follow up with the individual who reported the harassment—whether you found that it occurred or not—to ensure they feel safe and that they are not being retaliated against; again, document all findings.
  • Take swift and decisive corrective action to prevent such conduct. That may mean suspending or terminating the perpetrator. Once your company is aware that sexual harassment likely occurred, you are complicit if you fail to take investigate and/or take corrective action. Have clear standards for discipline.
  • Maintain a top-down culture of respect, anti-retaliation, and intolerance of unlawful harassment.
  • Consider your organizational culture. As I noted here, the organizational culture must be one that does not tolerate harassment. Leaders shape the culture. Leaders must believe authentically that harassment is wrong, articulate these beliefs, and hold this same expectation of others in the workplace.

Remember, we told you most recently here and here that (1) organizations that tolerate offensive behavior typically have far greater problems with sexual harassment and, (2) organizational “tolerance” is the single most powerful factor in determining whether sexual harassment will occur.

The EEOC’s roadmap to prevent sexual harassment, and other forms of harassment, include many of mine, i.e., the significance of the organizational culture or climate, accountability and reporting, and, finally, policies, procedures, and training that round out the organizational culture and commitment to accountability.

Uber has been listening. At least to the EEOC.

So, now, the EEOC reports that Uber has entered into a nationwide agreement to strengthen its anti-harassment and anti-retaliation culture.

They sent a news alert about it here.

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According to the alert, this settlement resolves the EEOC’s investigation, in which the EEOC found that Uber fostered an organization culture of tolerance of sexual harassment and retaliation against individuals who complained about such harassment, in violation Title VII of the Civil Rights Act of 1964 (Title VII).

The remedies to which Uber agreed are as follows:

  • establishing a class fund of $4.4 million (!!!!) to compensate workers who  experienced sexual harassment and/or related retaliation after January 1, 2014;
  • creating a system for identifying employees who have been the subject of more than one harassment complaint;
  • creating a system for identifying managers who fail to respond to concerns of sexual harassment in a timely manner;
  • updating its employment policies with input from a third-party consultant;
  • continuing to conduct climate surveys and exit interviews with specific attention to workplace sexual harassment and retaliation; and
  • monitoring for three years by a former EEOC Commissioner, an outside party.

Here’s what the EEOC glitterati had to say:

EEOC Chair Janet Dhillon: “This resolution demonstrates the benefits of working cooperatively with EEOC and serves as a model for businesses committed to truly leveling the playing field where opportunity is not circumscribed by one’s gender.”

EEOC Commissioner Victoria Lipnic: “This agreement holds Uber accountable, and, going forward, positions the company to innovate and transform the tech industry by modeling effective measures against sexual harassment and retaliation.”

EEOC San Francisco District Director William Tamayo: “In particular, employers should take note of Uber’s commitment to holding management accountable and identifying repeat offenders so that high-performing, superstar harassers are not allowed to continue their behavior. The tech industry, among others, has often ignored allegations of sexual harassment when an accused harasser is seen as more valuable to the company than the accuser.”

Employer Takeaway

Check your policies, and check your culture. Take a good long look and consider any changes to promote an organizational culture of respect, accountability, and one that does not tolerate sexual harassment. As Uber’s Chief Legal Officer Tony West said, “We’ve worked hard to ensure that all employees can thrive at Uber by putting fairness and accountability at the heart of who we are and what we do… .”

Amy Epstein Gluck

Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.