Last week we began focusing on Uber, and its recent legal woes. You can find that post here. I touched on four key areas. Let’s focus on the first one, discrimination, harassment and retaliation claims. While I’ve written about these issues before, apparently there are still enough employers who could stand to learn to appreciate the risks incurred by failing to take these issues seriously. Read on and we’ll see how Uber’s mistakes can educate the rest of us…
(image from investopedia.com)
The most recent discrimination issue facing Uber appears to be a lawsuit filed last month by 3 female engineers in the state court in San Francisco, California. According to the plaintiffs, women and underrepresented minorities consistently received lower scores than, and were denied promotions in favor of their male and white or Asian-American counterparts. According to the complaint, which you can find here, Uber’s stack racking system forces different outcomes between employees, “regardless of whether there are meaningful performance differences between individual employees within a particular peer group.” Female, African-American, and Native American “frequently” receive lower scores “despite equal or better performance.” Oh, and they’re also paid less than their male, white or Asian American counterparts. If that’s not enough, female employees were ranked by male colleagues and/or managers in terms of attractiveness. One of the 3 engineers alleges that her male co-workers told her that the only reason she was successful at Uber was because she was “so hot”. (Finally, two of the three plaintiffs were brought on as independent contractors, thereby restricting their access to company tools and training sessions. That’s a subject for a separate post, even though, yes, I have also written about that previously.)
In London, a female driver accused Uber of sex discrimination. Now, I know that London is in the UK and not the US, but that doesn’t necessarily make the issues any less relevant to employers here. In this lawsuit, the driver alleges that Uber puts “her and other women at risk”. To be more specific:
“…the way Uber operates means that drivers do not know their passenger’s destination until the passenger is already in the car and if that passenger’s journey is to a remote or unsafe area, the driver then has no option to cancel the journey.
“Similarly, if a customer becomes aggressive in the car, the driver cannot cancel the journey and, if she asks the passenger to leave the car, she faces a customer complaint and low rating which could affect future work.
…Uber should allow drivers to challenge complaints and low ratings, so that drivers do not risk losing their jobs if they ask passengers to leave their cars for their own safety.”
Uber contends that drivers can log in and out of the app as they wish and choose and/or cancel jobs without any penalty. According to Uber, “Drivers can also set a preferred destination in the app and Uber will only allocate bookings heading that way. One of the main reasons why women choose to drive with Uber is because of the safety features in the app. All trips are GPS tracked and a driver is able to share a live map of their trip with a friend or loved one.” Even if Uber’s statements are true, it will now incur substantial expenses defending the lawsuit and doing other damage control.
Then there’s Susan Fowler, who I mentioned last week. She didn’t file a lawsuit. She didn’t need to. She did publish a blog, that went viral (and has now led to a book and movie deal), in which she alleged, in detail, not only sexual harassment, but upper management’s unwillingness to address the issue, and retaliatory action against her for complaining of the misconduct. That led to an investigation, spearheaded by Board Member Arianna Huffington and former Attorney General Eric Holder, and led to the firing of a number of employees, and the resignation of its CEO.
It doesn’t take a crackerjack detective to see the pattern. Now, I admit I am not inside of Uber, so I am going by what I see as a pattern with Uber in general. Uber has up until recently, made its meteoric rise essentially by flouting rules. It is not clear if Uber even has policies or a complaint mechanism in place regarding discrimination and harassment. Has Uber looked for patterns in its recruiting, hiring, compensation and promotion practices? If so what if any steps did it take to address any such patterns that might indicate discrimination? Even if only half of Susan Fowler’s allegations are true, if Uber had sensitized and trained its management on diversity concerns and applicable federal, state and local anti-discrimination laws, their efforts seem to have failed miserably.
Judging by what Uber likely did or failed to do in these instances, here are just a few do’s and don’ts for the rest of you:
- Do: Ensure commitment from the top down to promoting a diverse workplace with equal employment opportunity, free of harassment and discrimination.
- Do: Communicate this commitment in the policies included in an Employee Handbook.
- Do: Train your managers and staff regarding your policies. Provide refresher training regularly.
- Do: Implement a complaint procedure and communicate it clearly to your employees.
- Do: Take all complaints seriously, investigate them promptly and take prompt appropriate action.
- Don’t: Retaliate against employees who complain of harassment/discrimination or cooperate in an investigation of a complaint.
- Do: Review your recruitment, hiring, promotion and compensation practices for patterns that might indicate discriminatory actions or impact and address any such issues promptly.
- Don’t: Tolerate any type of derogatory comments, gestures, or other behaviors by/toward employees that appear to be based on characteristics protected by federal, state or local anti-discrimination laws.
That should be enough to hold you for now. We’ll continue next week, probably a little earlier than usual due to Thanksgiving. See you then!
Good news! If you missed the live presentation, you can now get the recording of my webinar “Navigating the Employee Leave Overlap: FMLA, ADA and Workers’ Comp)”.
Click on the title above for more info.
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