Recognizing and Preventing Workplace Harassment: Haven’t We Heard This

Recognizing and Preventing Workplace Harassment: Haven’t We Heard This One Before (and is there really anything new to learn?) Timothy B. McConnell, Esq. Email: [email protected]

Almost 20 years ago FARAGHER AND ELLERTH 1998 www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 2

COURTS’ FRAMEWORK FOR ANALYZING HARASSMENT CLAIMS Q.1 Did actionable sexual harassment occur (either quid pro quo or hostile environment)? IF NO Employer is not liable for sexual harassment. IF YES Q.2 Did the harasser have authority over the employee (i.e. was the harasser a supervisor)? IF NO (Co-employee harassment) Q.2A(1) Did the employer know or should it have known of the harassment? IF NO Employer is not liable. IF YES Q.2A(2) Did the employer take immediate and appropriate corrective action? IF NO Employer is liable for sexual harassment. www.bakerdonelson.com IF YES Employer is not liable for sexual 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC harassment. 3

COURTS’ FRAMEWORK FOR ANALYZING HARASSMENT CLAIMS (continued) Q.2 Did the harasser have authority over the employee (i.e. was the harasser a supervisor)? IF YES (Supervisor harassment) Q.2B(1) Did the harasser take a tangible, adverse employment action against the employee? IF YES Employer is liable for sexual harassment. IF NO Q.2B(2) Did the employer exercise reasonable care to avoid harassment and eliminate it when it might occur? IF NO Employer is liable for sexual harassment. IF YES Q.2B(3) Did the employee exercise reasonable care to take advantage of the employer’s safeguards and otherwise prevent harm that could have been avoided? IF YES Employer is liable for sexual harassment. IF NO Employer is not liable for sexual harassment or is liable but the employee’s damages are barred or reduced. www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 4

DEFENSE DEFENSE TO TO HOSTILE HOSTILE WORK WORK ENVIRONMENT ENVIRONMENT CLAIMS CLAIMS 1) The employer exercised reasonable care to prevent and promptly correct harassment AND 2) The employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 5

REASONABLE REASONABLE CARE CARE TO TO PREVENT PREVENT HARASSMENT HARASSMENT INCLUDES: INCLUDES: Implementation of antiharassment policy Training of supervisors Implementation of effective investigation procedure www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 6

THE WORLD HAS CHANGED A LOT SINCE 1998 EMPLOYEES HAVE A DIFFERENT VOICE www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 7

Reflecting on one very, very strange year at Uber February 19, 2017 Susan J. Fowler As most of you know, I left Uber in December and joined Stripe in January. I've gotten a lot of questions over the past couple of months about why I left and what my time at Uber was like. It's a strange, fascinating, and slightly horrifying story that deserves to be told while it is still fresh in my mind, so here we go. After the first couple of weeks of training, I chose to join the team that worked on my area of expertise, and this is where things started getting weird. On my first official day rotating on the team, my new manager sent me a string of messages over company chat. He was in an open relationship, he said, and his girlfriend was having an easy time finding new partners but he wasn't. He was trying to stay out of trouble at work, he said, but he couldn't help getting in trouble, because he was looking for women to have sex with. It was clear that he was trying to get me to have sex with him, and it was so clearly out of line that I immediately took screenshots of these chat messages and reported him to HR. www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 8

Uber was a pretty good-sized company at that time, and I had pretty standard expectations of how they would handle situations like this. I expected that I would report him to HR, they would handle the situation appropriately, and then life would go on - unfortunately, things played out quite a bit differently. When I reported the situation, I was told by both HR and upper management that even though this was clearly sexual harassment and he was propositioning me, it was this man's first offense, and that they wouldn't feel comfortable giving him anything other than a warning and a stern talking-to. Upper management told me that he "was a high performer" (i.e. had stellar performance reviews from his superiors) and they wouldn't feel comfortable punishing him for what was probably just an innocent mistake on his part. www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 9

I was then told that I had to make a choice: (i) I could either go and find another team and then never have to interact with this man again, or (ii) I could stay on the team, but I would have to understand that he would most likely give me a poor performance review when review time came around, and there was nothing they could do about that. I remarked that this didn't seem like much of a choice, and that I wanted to stay on the team because I had significant expertise in the exact project that the team was struggling to complete (it was genuinely in the company's best interest to have me on that team), but they told me the same thing again and again. One HR rep even explicitly told me that it wouldn't be retaliation if I received a negative review later because I had been "given an option". I tried to escalate the situation but got nowhere with either HR or with my own management chain (who continued to insist that they had given him a stern-talking to and didn't want to ruin his career over his "first offense"). So I left that team, and took quite a few weeks learning about other teams before landing anywhere (I desperately wanted to not have to interact with HR ever again). I ended up joining a brand-new SRE team that gave me a lot of autonomy, and I found ways to be happy and do amazing work. www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 10

Over the next few months, I began to meet more women engineers in the company. As I got to know them, and heard their stories, I was surprised that some of them had stories similar to my own. Some of the women even had stories about reporting the exact same manager I had reported, and had reported inappropriate interactions with him long before I had even joined the company. It became obvious that both HR and management had been lying about this being "his first offense", and it certainly wasn't his last. Within a few months, he was reported once again for inappropriate behavior, and those who reported him were told it was still his "first offense". The situation was escalated as far up the chain as it could be escalated, and still nothing was done. Myself and a few of the women who had reported him in the past decided to all schedule meetings with HR to insist that something be done. In my meeting, the rep I spoke with told me that he had never been reported before, he had only ever committed one offense (in his chats with me), and that none of the other women who they met with had anything bad to say about him, so no further action could or would be taken. It was such a blatant lie that there was really nothing I could do. There was nothing any of us could do. We all gave up on Uber HR and our managers after that. Eventually he "left" the company. I don't know what he did that finally convinced them to fire him. www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 11

After later requesting a transfer According to my manager, his manager, and the director, my transfer was being blocked because I had undocumented performance problems. I pointed out that I had a perfect performance score, and that there had never been any complaints about my performance. I had completed all OKRs on schedule, never missed a deadline even in the insane organizational chaos, and that I had managers waiting for me to join their team. I asked what my performance problem was, and they didn't give me an answer. At first they said I wasn't being technical enough, so I pointed out that they were the ones who had given me my OKRs, and if they wanted to see different work from me then they should give me the kind of work they wanted to see they then backed down and stopped saying that this was the problem. I kept pushing, until finally I was told that "performance problems aren't always something that has to do with work, but sometimes can be about things outside of work or your personal life." I couldn't decipher that, so I gave up and decided to stay until my next performance review. www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 12

Performance review season came around, and I received a great review with no complaints whatsoever about my performance. I waited a couple of months, and then attempted to transfer again. When I attempted to transfer, I was told that my performance review and score had been changed after the official reviews had been calibrated, and so I was no longer eligible for transfer. When I asked management why my review had been changed after the fact (and why hadn't they let me know that they'd changed it?), they said that I didn't show any signs of an upward career trajectory. I pointed out that I was publishing a book with O'Reilly, speaking at major tech conferences, and doing all of the things that you're supposed to do to have an "upward career trajectory", but they said it didn't matter and I needed to prove myself as an engineer. I was stuck where I was. www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 13

I asked them to change my performance review back. My manager said that the new negative review I was given had no real-world consequences, so I shouldn't worry about it. But I went home and cried that day, because even aside from impacts to my salary and bonuses, it did have real-world consequences - significant consequences that my management chain was very well aware of. I was enrolled in a Stanford CS graduate program, sponsored by Uber, and Uber only sponsored employees who had high performance scores. Under both of my official performance reviews and scores, I qualified for the program, but after this sneaky new negative score I was no longer eligible. It turned out that keeping me on the team made my manager look good, and I overheard him boasting to the rest of the team that even though the rest of the teams were losing their women engineers left and right, he still had some on his team. www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 14

Things were beginning to get even more comically absurd with each passing day. Every time something ridiculous happened, every time a sexist email was sent, I'd sent a short report to HR just to keep a record going. Things came to a head with one particular email chain from the director of our engineering organization concerning leather jackets that had been ordered for all of the SREs. See, earlier in the year, the organization had promised leather jackets for everyone in organization, and had taken all of our sizes; we all tried them on and found our sizes, and placed our orders. One day, all of the women (there were, I believe, six of us left in the org) received an email saying that no leather jackets were being ordered for the women because there were not enough women in the organization to justify placing an order. I replied and said that I was sure Uber SRE could find room in their budget to buy leather jackets for the, what, six women if it could afford to buy them for over a hundred and twenty men. The director replied back, saying that if we women really wanted equality, then we should realize we were getting equality by not getting the leather jackets. He said that because there were so many men in the org, they had gotten a significant discount on the men's jackets but not on the women's jackets, and it wouldn't be equal or fair, he argued, to give the women leather jackets that cost a little more than the men's jackets. We were told that if we wanted leather jackets, we women needed to find jackets that were the same price as the bulk-order price of the men's jackets. www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 15

I forwarded this absurd chain of emails to HR, and they requested to meet with me shortly after. I don't know what I expected after all of my earlier encounters with them, but this one was more ridiculous than I could have ever imagined. The HR rep began the meeting by asking me if I had noticed that *I* was the common theme in all of the reports I had been making, and that if I had ever considered that I might be the problem. I pointed out that everything I had reported came with extensive documentation and I clearly wasn't the instigator (or even a main character) in the majority of them - she countered by saying that there was absolutely no record in HR of any of the incidents I was claiming I had reported (which, of course, was a lie, and I reminded her I had email and chat records to prove it was a lie). She then asked me if women engineers at Uber were friends and talked a lot, and then asked me how often we communicated, what we talked about, what email addresses we used to communicate, which chat rooms we frequented, etc. - an absurd and insulting request that I refused to comply with. When I pointed out how few women were in SRE, she recounted with a story about how sometimes certain people of certain genders and ethnic backgrounds were better suited for some jobs than others, so I shouldn't be surprised by the gender ratios in engineering. Our meeting ended with her berating me about keeping email records of things, and told me it was unprofessional to report things via email to HR. www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 16

Less than a week after this absurd meeting, my manager scheduled a 1:1 with me, and told me we needed to have a difficult conversation. He told me I was on very thin ice for reporting his manager to HR. California is an at-will employment state, he said, which means we can fire you if you ever do this again. I told him that was illegal, and he replied that he had been a manager for a long time, he knew what was illegal, and threatening to fire me for reporting things to HR was not illegal. I reported his threat immediately after the meeting to both HR and to the CTO: they both admitted that this was illegal, but none of them did anything. (I was told much later that they didn't do anything because the manager who threatened me "was a high performer"). www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 17

But wait, it gets even better During a meeting of the Board of Directors to discuss this situation and the findings of the Company’s investigation, the following exchange took place: Board member Arianna Huffington, while explaining the benefits of having more female representation on Uber's board, made the following statement: “There’s a lot of data that shows when there’s one woman on the board, it’s much more likely that there will be a second woman on the board.” Fellow Board member, David Bonderman interjected and said: “Actually, what it shows is, it’s much likely there'll be more talking.” A few hours later, Bonderman resigned. www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 18

The Fallout CEO Kalanick takes a leave of absence 20 employees are fired Among the recommendations made by the law firm that conducted the investigation: Mandatory Leadership Training for Key Senior Management/Senior Executive Team Members – training to include topics such as inclusive leadership and implicit bias Mandatory Human Resources Training – training on effective handling of complaints, proper and thorough investigation of complaints and when to escalate to legal Mandatory Manager Training – Uber should adopt a comprehensive, live, required training program for all managers that is updated and repeated at regular intervals www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 19

HAS ALL THE TRAINING WORKED? www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 20

EEOC Charge Statistics Charges filed with the EEOC Alleging Harassment (all forms) FY 2010: 27,356 FY 2011: 27,270 FY 2012: 26,777 FY 2013: 26,756 FY 2014: 26,820 FY 2015: 27,893 FY 2016: 28,216 www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 21

EEOC Charge Statistics (cont.) Charges Alleging Sex-Based Harassment FY 2010: 12,695 FY 2011: 12,461 FY 2012: 12,569 FY 2013: 12,379 FY 2014: 12,146 FY 2015: 12,573 FY 2016: 12,860 www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 22

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Fox News Under Roger Ailes www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 24

The Gretchen Carlson Lawsuit www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 25

Laurie Luhn www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 26

Julie Roginsky www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 27

Rudi Bakhtiar www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 28

Megyn Kelly www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 29

Bill O’Reilly www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 30

Andrea Tantaros www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 31

Rebecca Gomez Diamond www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 32

Laurie Dhue www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 33

Juliet Huddy www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 34

Wendy Walsh www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 35

Scottie Nell Hughes www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 36

Charles Payne www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 37

“The Five” www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 38

Bob Beckel www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 39

Eric Bolling www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 40

What do these people have in common? Roger Ailes Bill Shine Jamie Horowitz Denise Collins www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 41

Kevin Lord www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 42

So, why are we still having problems? 1. The Human Factor 2. Workplace Culture 3. Training/Education has never been/is no longer a priority 4. Ineffective training -- reliance on on-line training programs 5. Failing to effectively address situations www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 43

for Proactively Addressing Workplace Harassment www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 44

raining nvestigation olicy elf-analysis www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 45

TRAINING Who should I train? How often should I train? What should my training consist of? www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 46

TRAINING (Cont’d) Educating Educating your your supervisors supervisors and and managers managers is is essential essential to to preventing preventing workplace workplace harassment. harassment. What What about about the the non-supervisory/ non-supervisory/ management management level level employees? employees? www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 47

TRAINING (Cont’d) How How often often should should II train? train? 1. Annually for all supervisors and managers; 2. When a new manager or supervisor joins the company; 3. When a current employee is promoted to management; 4. As part of the resolution of a complaint 5. When concerns are observed about employment law compliance. www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 48

Keys to a Successful Training Program Definition of harassment Statutory provisions prohibiting unlawful harassment Types of conduct that constitute unlawful harassment Strategies to prevent unlawful harassment www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 49

Keys to a Successful Training Program (Cont’d) Your policy Confidentiality of complaint process No retaliation How to effectively investigate a harassment complaint HAVE FUN – role play, case studies, group discussion, quizzes www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 50

INVESTIGATION When should I investigate? What are the keys to an effective investigation? How do I conduct an investigation? www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 51

INVESTIGATION Any and all complaints or situations involving harassment Confidentiality, Promptness, Thoroughness, Impartiality Address fear of Retaliation Process cannot be Burdensome Process must be Effective www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 52

POLICY Shouldn’t it be first? What must my policy contain? www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 53

POLICY Clear explanation of prohibited conduct (don’t focus just on sexual harassment) Assurance of protection against retaliation Clearly described complaint process – must permit both informal and formal complaints and provide a mechanism for bypassing a harassing supervisor www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 54

POLICY Confidentiality Requirement that supervisors report incidents of harassment Prompt, thorough and impartial investigation Training Immediate and appropriate corrective action www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 55

SELFANALYSIS Workplace Culture Email/Internet/Texts Workplace Romance Top-down buy-in www.bakerdonelson.com 2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 56

QUESTIONS?