Takeaways For Employers From The Uber, Fox News and Trump Sexual Harassment Scandals

by Pullman & Comley - Labor, Employment and Employee Benefits Law

Pullman & Comley - Labor, Employment and Employee Benefits Law

Last week, Uber announced the firing of at least 20 employees, resulting from an investigation of 215 harassment complaints at the company. Then, on June 13, its chief executive, Travis Kalanick, announced he would be taking a leave of absence.  Not long ago, Fox News fired its now-deceased CEO, Roger Ailes, after he and other executives were accused of multiple acts of sexual harassment.  Fox News also “cut ties” with Bill O’Reilly, its biggest star, after multiple allegations of sexual harassment and inappropriate behavior. And of course,  President Donald Trump, during his campaign, and before, was accused of sexual harassment by nearly a dozen women; he attempted to excuse his now-famous statements belittling women and boasting of sexual conquests by saying he was merely engaging in “locker room” banter.

After decades of education, training and litigation over workplace sexual harassment and discrimination since the passage of Title VII, why haven’t the lessons been learned? Is the prevalence of harassment in the workplace really no less than it was thirty years ago?  Or is it simply that more women (and men) feel empowered to speak out against a culture of sexual aggression?

We can all be shocked by some of these high-profile incidents of harassment, but what are the lessons that employers can take away from these matters to apply to their work environments? Here are a few.

A Culture of Harassment Starts at the Top

Workplace harassment has undoubtedly been around since men and women began working together. But in today’s workplace – unlike, say, the 1960’s world of “Mad Men” – bosses have to understand the meaning of, and be committed to, equal treatment of men and women.  They must recognize that wider diversity among employees requires greater sensitivity, tolerance and respect for others.  Moreover, they must realize that a leader – whether in the workplace or in politics – cannot simply say whatever may come to mind without consequences.  Leaders must be able to filter their thoughts before those thoughts emerge as hurtful, intolerant or prurient words.

Company management must recognize that if it tolerates a culture of harassment, a culture of intolerance, or a culture where sexual banter or sexist comments are permitted, then there will be fallout when today’s generation of employees – a generation that does not expect to have to put up with such behavior – pushes back. How management responds to that pushback will say much about the culture of the business.

In that event, will your company recognize that it may have a problem and get its leadership the training they need? Or will the company go into a defensive posture, blaming the victims, and protect misbehaving leaders “for the good of the company?”  I suggest that the latter course will lead to more, not less, trouble for the company.

There are several reasons why this is true. First, when a company protects leaders who engage in harassing or sexist behavior, the problem remains in place and the threat of future bad acts – with attendant legal exposure – remains.  Second, the protected perpetrator feels empowered to repeat his bad behavior – whether it is sending sexually explicit emails, making sexist or racist comments to employees, or worse – which leads at least to the departure of valuable employees and at worst to legal claims.  Third, the wound that was inflicted by the harassment remains open and festering.  Employees see that the company tolerates unacceptable conduct by its most powerful executives.  This creates a poisonous, distrustful work environment, which in turn affects morale, productivity, and eventually profitability.  The lesson here is that doing “the right thing” will actually result in greater profits than doing nothing.

A Fair, Independent Investigation is Required

A second lesson from recent events is the importance of a good investigation. The Uber situation is a good example of a modern business that recognized a problem, albeit a bit late in the game.  Uber was a workplace infected by sexist conduct that ranged from mere boorish behavior to clearly unlawful harassment and discrimination.  When Susan Fowler, a former Uber engineer, published a blog post detailing allegations of harassment, discrimination and retaliation during her employment at Uber, the company recognized that it had to respond to the situation or risk a mutiny, as well as a public relations nightmare.  So Uber responded.  It hired outside counsel to investigate 215 harassment complaints that it had received through its anonymous hotline.  The investigator determined that more than 100 of them were valid.  As a result of the investigation, at least 20 employees lost their jobs, including several at “senior level.”

Uber also hired a second team of lawyers — which included former U.S. Attorney General Eric Holder —  to perform a further investigation of the company’s culture and how it could be improved.  Attorney Holder and his colleagues submitted recommendations to Uber, and this week, Uber announced that it agreed with the recommendations and would implement them.  Those recommendations focus on “four prevailing themes”: tone at the top, trust, transformation, and accountability.  Uber’s reputation has been badly damaged by these events, but having performed fair and thorough investigations and acted on their results, Uber has not only begun to repair the damage, but has also strengthened its legal position should it face claims in the future.

A Meaningful Response is Required

While we hope and expect that most companies will not, like Uber, need to implement twelve single-spaced pages of remedial measures in order to offer their employees a diverse, inclusive and non-hostile work environment, the following recommendations are tried and true methods for addressing issues of workplace discrimination and harassment.

First, consult your company’s employee handbook, and follow the policies and procedures contained there. Uber’s failure to honor its own policies and procedures  was one of Ms. Fowler’s biggest gripes about the company’s response to her complaints of discrimination and harassment.  Following your own policies and procedures is critical as it ensures the integrity of the complaint process, and signals to your employees that the company takes allegations of discrimination and harassment seriously.

Second, sensitivity and anti-harassment training for all supervisors, including senior leadership, is always a good idea. In fact, we recommend that such training be required for all employees.  If nothing else, making the boorish complete such training, whether live or on-line,  reinforces the company’s position that such conduct will not be tolerated, and in the event of a claim will help the company establish that it took reasonable steps to prevent such conduct.

Third, discipline ranging from warnings to terminations must actually be meted out to effectively cure the workplace of the poisonous atmosphere. It is essential to establish that bad behavior has consequences.

Finally, a simple apology may be warranted for instances that involved only a misunderstanding. The harm caused by a stray insensitive remark, or a joke that unintentionally offended someone or hurt their feelings, may often be effectively cured with an apology.  Too often egos get involved, and rather than apologize or take other small, and costless, steps, the company’s leadership goes into a defensive posture that only ends up exacerbating the situation.  The company’s perceived complicity in the misconduct can leave employees questioning not only the culprit’s bad behavior, but that of the organization as a whole.

Creating a diverse and inclusive workplace that welcomes male and female employees of various races, sexes and sexual orientations is a goal of every modern American employer. Communication miscues will occur and are inevitable.  Dealing with those miscues, and dealing effectively with leaders who engage in or condone inappropriate behavior, must also be a goal for every modern employer.  The alternative is a divisive, poisoned atmosphere – like those that were allowed to exist at Uber and Fox News – with all of the unpleasant and expensive consequences for the company.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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