Feb
21
2017
By Lisa Mak
This past Sunday, ex-Uber engineer Susan Fowler published a powerful blog post about the gender discrimination she experienced while working at Uber. It started with her male manager sending her messages, stating that he was in an open relationship and was trying to stay out of trouble at work but couldn’t help it, because he was looking for women to have sex with. Susan sent screenshots of the chat to Human Resources. The response? Uber HR and upper management told her that even though this was clearly sexual harassment, they were not comfortable giving the manager anything besides a warning. The reasons? This male manager was a “high performer” and it was his “first offense,” so they did not want to ruin his career over “an innocent mistake.” The company then gave Susan the “choice” of moving to another team, or staying on the male manager’s team and likely receiving a negative review from him.
When Susan later tried to transfer to other teams, her transfers were blocked due to undocumented “performance” problems. Her performance review was downgraded from a positive to a negative score, and she was told that she needed to prove herself as an engineer.
Presumably Uber, like most large U.S. companies, has a policy encouraging employees to report incidents of discrimination. Each time Susan received a sexist email, she forwarded it to HR. This included emails with her director when he said the company would not order promised leather jackets for the female engineers because they had not been able to get a bulk discount on the women’s jackets as they had for the men’s jackets. When Susan reported this to HR, she was told that maybe she was the problem, that she should not be surprised at the gender ratios in engineering, and that it was unprofessional to report things to HR via email.
Less than a week later, Susan’s manager told her that she was on “very thin ice” for her HR report and could be fired if she did it again. He also said that his threats to fire her for reporting things to HR were not illegal. Susan reported this conversation to HR and the CTO, but again the company did nothing. Susan left Uber for a new job.
After Susan’s blog post went viral, Uber CEO Travis Kalanick suddenly announced that the company is launching an “urgent” internal investigation into the matter, headed by former U.S. Attorney General Eric Holder.
Some takeaways from Susan’s terrible experience: We need to stop pretending that the tech world is a pure meritocracy, and instead call out the prevalent sexism in that sector. For starters, there’s the numbers issue. On her last day at Uber, Susan calculated that of the over 150 reliability engineers there, only 3 percent were women. Just last month, civil rights activist Rev. Jesse Jackson called out Uber to release its workforce diversity data. Why does a tech company of this size still need to be urged to be transparent about its diversity numbers? And then there’s the cultural issue – a culture that favors men in the STEM fields, that marginalizes women, and blames them when they speak out about misogyny. The problem of victim-blaming is also amplified in the tech space where employees are often on social media, with the risk of being judged by potential employers and targeted by internet trolls. We’ve known about these problems for years. So why hasn’t anything changed?
We also need to fix the double standard that underlies companies’ responses to these complaints. When Susan reported her male manager’s behavior, Uber did not want to ruin his career over a “first offense.” She later learned from other Uber female engineers that it was not, in fact, his first offense. Unfortunately, we’ve seen how companies use this excuse to sweep complaints under the rug, whether in tech or in other sectors. This attitude presumes that a man’s career opportunities are somehow more valuable and worthy of protection than a woman’s workplace rights.
Whether it was the harasser’s first offense or his fiftieth, Uber’s response was out of line as a matter of law. There is no exception to enforcing employment laws based on whether someone’s career and reputation would be “ruined” over claims of harassment and discrimination. It certainly is not a reason to avoid addressing the problem. Employers are legally obligated to investigate all complaints of harassment and to take prompt, effective action to stop it. Forcing the harassment victim to transfer is retaliation, not a remedy. Our laws focus on protecting those who suffer harassment, discrimination, and retaliation, and on eliminating those evils from our workplaces – not on whether the perpetrator will have hurt feelings or a derailed career.
Companies need to start taking complaints seriously, doing fair investigations, and taking appropriate remedial steps at the time these issues are raised. Uber is not some small start-up with five employees stuffed in a garage. It has thousands of employees, an HR department, legal counsel, and a board of directors. Why was nothing done to help Susan until she made her story public?
Uber does not get credit for now conducting an investigation into Susan’s claims, after she has already left the company and after she made a public blog post about her experience. Uber does not get credit for now committing to release its diversity statistics after this incident. Investigating and taking action should have happened long ago, instead of letting the situation spiral out of control. Kalanick’s apology now is simply too little, too late.
It should not take a blog post and public outrage to make a company finally pay attention to employees’ complaints of sexual harassment, gender discrimination, and retaliation. Our laws require companies to treat their employees fairly all the time, every time, not just when it is a PR nightmare.
About Lisa Mak
Lisa Mak is an associate attorney in the Consumer & Employee Rights Group at Minami Tamaki LLP in San Francisco. She is passionate about representing employees and consumers on an individual and class basis to protect their rights. Her practice includes cases involving employment discrimination, harassment, retaliation, wrongful termination, labor violations, and severance negotiations. Ms. Mak is the Co-Chair of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, and an active volunteer at the Asian Law Caucus Workers’ Rights Clinic. Ms. Mak is a graduate of UC Hastings School of Law and UC San Diego. She is fluent in Cantonese and conversant in French.