Labor / Employment, On The Job

3 Tips For Dealing With Sexual Harassment On The Job

Pro tip: companies that don’t listen to legal counsel also don’t give their HR any power (and they tend to be very poorly trained).

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Susan Fowler Rigetti via Twitter

Susan Fowler Rigetti via Twitter

This weekend, the internet was abuzz with the news that a former Uber engineer had gone public with damning claims: Uber is not a great place to work, and allows a hostile work environment for its female engineers. I could have told you that even though they have never been my client; their aggressive, take no prisoners style and their clear refusal to listen to legal counsel was an indicator of this to me. Pro tip: companies that don’t listen to legal counsel also don’t give their HR any power (and they tend to be very poorly trained).

The gist of the story is a female engineer, Susan Fowler Rigetti, who happens to be making a name for herself as an expert in her field, had a horrible time working for Uber. She was immediately propositioned by her supervisor (and when I say immediately, I mean within a few hours of him becoming her supervisor), and things went downhill from there.

I wish I could say I was shocked by her story. I wasn’t. I have heard worse. What I was surprised by was her willingness to publicly share it. Because Uber knew, and counted on an almost universal truth: women and people of color don’t report discrimination or harassment when they value their career. And almost everyone at Uber values their career greatly.

Some people may disagree, but I’ve seen my share of situations that prove this to be true. I know of a situation at a law firm where a rainmaking partner had sex with a summer associate. Of course this tainted her experience, and I am 100% sure, from personal knowledge, that she felt pressured into the relationship. Needless to say, she didn’t return, especially after an uncomfortable conversation with HR because of a really awkward situation. And you will never know who she is. Because of course she didn’t sue, even though she was basically told not to come back.

Why would a woman deal with what Susan Fowler Rigetti dealt with, and not sue, not complain publicly while at Uber (including, it appears, even an EEOC charge)? I can give you a few examples, but the best is Ellen Pao.

When employment lawyers like me think about sex discrimination and famous woman, we think about Ann Hopkins. Do you know she never worked anywhere else in her career but PriceWaterhouseCooper?

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There is a real price plaintiffs pay for making their dispute with their employer public, especially if that plaintiff is a woman. I’m sure you have seen many situations chronicled here at ATL.

What’s my advice for someone who is in similar shoes to Susan Fowler Rigetti?

1. Know what you want. Think long and hard about what the desired outcome is, and what you are willing to do to get there. Are you willing to take the risk that you will never work in the industry again? Are you ready to move on immediately? Is your company the type of place where bigotry and harassment are likely part of the culture? Often, with women in particular, they will have a goal of making the place better for female employees. But unfortunately, one employee can’t do that. Sometimes even class actions aren’t capable of changing deep seeded issues with a company’s culture. You have to decide what you are fighting for an if it is really worth it or even possible to achieve.

2. Have support for what you are claiming. Unfortunately, he-said, she-said tends to fall in favor of the company when push comes to shove. Even the EEOC is reluctant to take a side without some concrete evidence. One of the things that Susan appears to have done well was documenting events. It is likely that right now, somewhere, she has copies of the inappropriate messages from her manager. The same messages she gave to HR. I hate to say it, but pictures or it didn’t happen is pretty important for “proving” harassment. And even then, it may not be enough.

3. It all comes down to money. The principled women I encounter are often aghast at this, but for every company, claims of discrimination and harassment always come down to dollar values. How much do they need to pay to make it all go away. And a little known fact is, these claims are capped by federal and state law. So even if you have all the evidence you need to show how awful the company was, if the maximum damages don’t touch their bottom line, nothing may change. Sure, small employers can learn very quickly how dangerous it is to have a culture like this. But for Uber, they may consider this the cost of doing business, and find their “high performers” are worth a few discrimination lawsuits.

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I think that anyone experiencing anything like Susan did at Uber should immediately reach out to an employment lawyer. And I find it sickening when a company can be so callous, and dishonest, about a situation such as a hostile work environment based on gender. Further, I strongly believe Uber knew long before Susan wrote this blog post exactly what happened. But I also would not want anyone to get involved in this battle without knowing what they are up against. And being truly prepared for a fight. If, like Anne Hopkins, you are willing to spend your entire career at the employer you are ready to sue, it may work out for you. But, if like Susan Fowler Rigetti, you are thinking about going public with your employer’s misdeeds, make sure you are a published expert in your field and already have a new employer lined up. Have receipts on hand, to keep the employer from getting too gregarious in their response. And be prepared for a backlash. Because unfortunately, telling the truth can ruin your career.

beth-robinsonBeth Robinson lives in Denver and is a business law attorney and employment law guru. She practices at Fortis Law Partners. You can reach her at employmentlawgurubr@gmail.com and follow her on Twitter at @HLSinDenver.

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