Investigating a harassment complaint is not rocket science, yet as the recent news from Uber illustrates, there are many ways for employers to mess it up.
The first step is to gather sufficient details to understand the scope of the issue. Former Uber employee Susan Fowler’s viral blog post certainly did that, and the CEO, Travis Kalanick, apparently got an earful at his all-hands meeting last week.
Once the gravity of the issue is known, the next step is to devise an investigation plan, and figure out who should conduct the investigation. Sometimes it makes sense to use the company’s internal HR department. Yet, when higher levels of management are involved, or there is an alleged systemic problem, the HR department is not the best choice. In fact, they may be part of the problem.
Sometimes it makes sense to go to a trusted outside advisor or law firm, especially when that advisor knows the company, its culture, and the management team. There is less ramp up time to understand the players at issue, as well as the company’s dynamics and policies. This seems to have been Uber’s approach in appointing Eric Holder and his law firm to investigate last week, along with oversight by board member, Ariana Huffington, and the new internal Head of HR.
But alas, that is a problem too. The investigator must be perceived as unbiased and independent. The investigator must be someone employees trust and are not afraid to talk to. Retaliation is a real concern for employees. If the investigator or his firm is seen as too close to management, then employees may not speak fully and honestly, thereby undermining the investigative process. This very issue seems to be what two of Uber’s investors were concerned about when they wrote that they were “disappointed” that Uber “chose a group of insiders to conduct the probe.” While some oversight by a designated board member, and the current head of HR often makes sense, in this case, it is viewed by some (including the two investors) as “an example of Uber’s continued unwillingness to be open, transparent, and direct.”
In fairness to Holder and his law firm, they may very well be independent. But appearances matter, and for the past week, the optics for Uber are not looking good, and the persistent fallout has not abated.
The lesson here is when a complaint comes in, it is critical to assess the issue and carefully plan the investigation. Decisions about who should conduct it, and who the investigator will report to and work with at the company during the investigation as it evolves and expands, are just as important as taking prompt action. A mistake at this early juncture can taint the whole process.
Hopefully for Uber, that will not be the case. As the investors’ letter states, this “will be defining for the company, so the stakes are high to get it right.” Time will tell. To be continued …