Koko the Gorilla, who turned 36 last month, has quite a following. Much of that has to do with the fact that she purportedly has a vocabulary of over 1000 words that she communicates through sign language. If this were a blog about linguistics, primate behavior, or how the Planet of the Apes movies are a cautionary tale about future inter-species conflict, we’d delve into that further. But it’s not. So let’s talk about another thing Koko is famous for.

Koko is the only western lowland gorilla to be accused of sexual harassment. In 2005, two women working for the Gorilla Foundation in Woodside, CA (southwest of Redwood City) sued claiming that the president of the Foundation pressured them to expose their breasts to Koko. According to the lawsuit, which settled for undisclosed terms:

“On at least two incidents in mid-to-late June 2004, Patterson intensely pressured Keller to expose herself to Koko while they were working outside where other employees could potentially view Keller’s naked body. … On one such occasion, Patterson said, ‘Koko, you see my nipples all the time. You are probably bored with my nipples. You need to see new nipples. I will turn my back so Kendra can show you her nipples.'”

Both women further allege that they declined to “indulge Koko’s nipple fetish.” If this were a blog about gorilla’s sexual predilections, we’d delve into that deeper. But it most assuredly, is not. It’s about California Employment Law. We make that pretty clear at the top of the page. So what does any of this have to do with California employment law?

For employers, preventing harassment requires more than just controlling their employees. Companies can also be liable for harassment of their employees by third parties if the company fails to take prompt and effective measures to address the harassment. Employers can’t necessarily control the behavior of customers, clients, vendors, contractors, and everyone else their employees interact with in their work. But if you’re an employer, you should take these steps:

  1. California regulations require that a company’s sexual harassment policy prohibit harassment by co-workers, supervisors, managers, and third parties with whom the employee comes into contact. So ensure that your harassment policy contains that language.
  2. Ensure that your harassment policy directs employees whom to complain to if they are subjected to harassing behavior by third parties.
  3. Train your supervisors to notify human resources immediately if these issues come to their attention.
  4. If issues of third-party harassment arise, make sure that the company conducts a prompt and thorough investigation.
  5. If the facts developed in the investigation warrant, take prompt remedial action that is reasonable to prevent the situation from recurring.
12506543 – western lowland gorilla portrait (gorilla gorilla gorilla) captive. national zoo. washington dc, usa.

This last step can be complicated. You can’t necessarily counsel or discipline third parties the way you can with employees. In extreme cases, companies have even had to fire clients who refuse to treat the companies’ workers appropriately. Fortunately, that’s just in extreme cases — where the clients insist on behaving like gorillas.

 

 

A year ago, I wrote about a report from an EEOC Task Force on risk factors for workplace harassment. Well the Select Task Force on the Study of Harassment in the Workplace continues studying away and has issued some new materials. They consist of:

Takeaway No. 1: It’s a point I’ve been making for years and will keep making. If your company gets sued for harassment, the case will be less about what the harasser did than about what the company did to prevent and respond to the situation. As the law gets more exacting on what it expects from employers, it’s critical to have qualified legal counsel guide you through this process.

Takeaway No. 2: There is such a thing as researchers who evaluate organizations’ holistic workplace harassment prevention efforts!

Have you ever felt powerless in your job?  Felt that there was no way you could have impact on the corporate environment?

Well, recent events have shown how the catalyst theory is alive and well in corporate America.

Take Uber for example.  A mere four months ago, a lone female engineer who had left the company after feeling mistreated wrote a blog post.  Within days, that post went viral, caused Uber’s CEO and Board to take notice, and sparked a chain of events that was fascinating to watch (and blog about).

One woman and her blog post ignited a chain reaction that culminated with the CEO’s resignation on June 20th.  As reported by news outlets, Travis Kalanick was forced out by Uber’s Board after several investors demanded his resignation, in large part due to the sexual harassment probe initiated by that single blog post.  The allegations in that one blog post wound up being the tip of the iceberg, with a reported 215 harassment complaints at the company, resulting in the termination of at least 20 executives.  Many of those harassment claims remain unresolved, and the company now has a mandate to change its culture and implement 47 different recommendations to make it a more politically correct company.

In fact, there are many other examples in the press about the catalyst theory at work, involving major television celebrities and executives.  Powerful people, who once seemed untouchable despite all types of bad behavior (that was widely known yet unaddressed) eventually fall or are forced out.  At times, karma really does catch up with people and justice can prevail.

So, if you are feeling powerless at your company, and think change can’t happen, well, think again.  Just read the headlines, because one person (and in this case one brave woman), can really make a difference.

 

 

 

 

 

It took three months, but the long-awaited report about Uber’s culture from former Attorney General Eric Holder and his law firm was published this week. You can read the 13-page report with its 47 recommendations here.  Uber’s Board of Directors voted unanimously to adopt all of the recommendations.

CEO, Travis Kalanick, will have a reduced leadership role.  Parts of his job will be given to a new Chief Operating Officer charged with implementing the Board’s recommendations. There will also be more Board oversight of management, and steps to create a more independent Board that can actually hold management accountable (including financially).

In addition, it was also reported that the CEO is taking an immediate and indefinite leave of absence.  It has been a rough year for Kalanick, whose mother recently died in a boating accident where his father was also seriously injured.

In his statement to Uber employees he writes: “The ultimate responsibility, for where we’ve gotten and how we’ve gotten here rests on my shoulders. For Uber 2.0 to succeed there is nothing more important than dedicating my time to building out the leadership team. But if we are going to work on Uber 2.0, I also need to work on Travis 2.0 to become the leader that this company needs and that you deserve.”

The report also reads like a help-wanted advertisement to consultants of all types as it requires:

  • Mandatory Leadership Training for Key Senior Management and Executive Team Members
  • Mandatory Human Resources Training
  • Mandatory Manager Training
  • Interview Training

Uber is also in the market for several senior executives including a new Chief Operating Officer, Chief Financial Officer, Senior Vice President of Engineering, and General Counsel after many high profile departures.

There are also recommended changes to the Human Resources Department and complaint process, which seem long overdue.  As you know from prior blog posts, the way Human Resources reportedly handled the harassment issues raised by female engineers was a lesson in how not to investigate a complaint.

Steps will also be taken to limit the party atmosphere (less alcohol and controlled substances at work) and to prohibit romantic or intimate relationships between individuals in a reporting relationship.  Hard to imagine that these protections were not already in place for a business with over 12,000 employees.

Probably the most entertaining recommendations were a revamp of the company’s core values to eliminate those that have been used to justify poor behavior, such as:

  • Let Builders Build
  • Always be Hustlin’
  • Meritocracy and Toe-Stepping
  • Principled Confrontation

Oh, and my personal favorite, the War Rooms will now be designated Peace Rooms.

Rainbow peace flag
Copyright: daboost / 123RF Stock Photo

Some are skeptical that Uber can change.  Whether it can depends on whether Kalanick and other senior managers can set aside the aggressive culture to walk-the-walk, and not just talk-the-new- peaceful-inclusive-talk.

After a flurry of activity in February, the news has been relatively quiet at Uber until this week.  We knew that reports of harassment by lady engineers triggered a massive investigation, and at the time, news reports indicated a formal report was due by the end of April.  But that day came and went.  Now, the wait is over, and Uber is in the news again.  Here is the latest:

Businessman cutting back jobs
Copyright: kaarsten / 123RF Stock Photo

According to a report from Bloomberg, at least 20 Uber executives have been fired as part of the harassment probe, and more are being disciplined, after a law firm investigated a stunning 215 claims of sexual harassmentAccording to reporting, of the 215 claims, 57 remain under investigation, 31 employees received counseling or training, and 7 received written warnings.

The New York Times also reported that Uber’s President of Asia Operations, and a longtime confidant of CEO Travis Kalanick, was fired after “reporters inquired about his actions to obtain the medical records of a woman who said she was raped by a driver” in India.

Meanwhile another law firm is also conducting an investigation led by former US Attorney General Eric Holder into claims made by Susan Fowler and other female engineers in February.  That investigation apparently is still ongoing.

In addition other senior executives are resigning for various reasons, including Uber’s Vice President of Product and Growth who reportedly resigned once an affair with an employee was revealed, as well as a female Global Policy and Communications Chief who resigned amid reported clashes with the CEO.

Yes harassment issues still reign in California, and top executives can lose their jobs because of it.  Even people who once seemed untouchable can fall from grace.

It remains to be seen if Uber’s new hires, including Francis Frei, a well-known Harvard academic who was recently hired as Uber’s first Senior Vice President of Leadership and Strategy, can transform the super aggressive “bro-culture” into one of diversity and inclusion.

Stay tuned.

I was recently invited to contribute a chapter on employment law to the 2017 Israel Desk International Legal Guide. As more and more Israeli companies bring their operations to the U.S., they learn firsthand the intricacies of our employment laws. The chapter outlines six trends that I suggested that they pay attention to. They include wage and hour laws, equal pay, accommodating disabled workers, whistleblower claims, local regulations, and trade secrets.

Copyright: slidezero / 123RF Stock Photo

On the topic of trade secrets, I had the opportunity to give a presentation in Tel Aviv last month on Protecting Your Trade Secrets in Silicon Valley and Beyond to members of IATI (Israel Advanced Technology Industries – an industry group for high-tech and life science companies). You can read my chapter on legal trends and see a copy of my presentation on trade secrets.

Fox Rothschild LLP’s Israel Practice Group is adept at helping companies based in Israel with their U.S. legal needs.

Yes, I am still obsessed about all things Uber these days.  That said, I have been ruminating over one development last week that just didn’t sit right with me.

On the one hand, I know firsthand how that bro-centric culture can be devastating.  Just a few years ago I knew a young woman working in tech.  She had just spent two years in a management training program and earned a coveted placement in her first choice department working for a very well-regarded young manager.  One late night at work he confessed that he was totally attracted to her, and very distracted by it.  He then began to text her very personal messages.  She was horrified.  Didn’t know what to do.  Wondered if she had done something wrong.  I advised her to talk to HR and to document that discussion to protect herself from retaliation.  HR was empathetic and asked her what she wanted to do.  She wanted to stay in the role (moving just after she just got the job would have been impossible to explain).  But the creepy unwanted attention had to stop.  Presumably the manager was counseled, and she stayed.  But then he essentially froze her out.  Only talked to the men on the team.  She felt like an outcast, and shortly thereafter, quit for a better job.

Let’s also be clear, if even 10% of what the former employees at Uber are saying is true, then Uber has quite a problem.  The more recent account was particularly upsetting.

All of that said, being a lawyer trains you to see both sides to every story.  I have often seen employees take one situation that has a kernel of truth, and spin it wildly into a much more elaborate story than it actually was.  I have seen careers (typically of men) ruined by allegations.

That brings me back to Uber.  News reports last week stated that a senior executive was asked by the CEO to resign when it was uncovered that he had left his former employer amid harassment allegations.  He apparently had not told Uber when hired, and now, given the investigation and the press, it was better for Uber that he resign.  What’s wrong with this picture?

Employee termination
Copyright: ljupco / 123RF Stock Photo

For me (and not knowing anything other than the news reports), it just didn’t sit right.  An allegation is just that.  Just like being arrested does not mean the person committed a crime.  Nothing has been proven.  And there was no report of anything this executive did wrong at Uber, just what he may have done wrong at a prior employer.  Nor was there any report of any misrepresentations he made to get hired.  Remember, an applicant is not required to disclose allegations against him to future employers.

So here’s a tip for you:  Ask your applicants if they were ever terminated or asked to resign in lieu of termination.  Or better yet, put that question on your employment application.  Any later discovered misrepresentation to that direct question would certainly be a problem.  But if that question wasn’t asked, is it right for someone to be forced out?

Scapegoating is a quick answer to a much deeper problem.  I don’t want us to assume all men in tech are bad eggs or label them all as harassers.  Let’s have some due process for all people accused of policy violations.  As I explained here, due process starts with an unbiased investigation.  And then, if after a fair investigation, someone is found to have used poor judgment or violated a policy, then that person should be let go.  A witch hunt is not the answer.

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.

Investigation and technology
Copyright: imagecatalogue / 123RF Stock Photo

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 …

I remember back in 2004 when AB 1825 passed, requiring all California businesses with over 50 employees to train all managers and supervisors on harassment prevention.  It was one of the first significant employment laws signed by Arnold Schwarzenegger when he became California governor (and yes, that is ironic given the allegations against him).

Uncomfortable employee
Copyright: bbtreesubmission / 123RF Stock Photo

For the past 13 years, I have been conducting harassment prevention training for clients.  I have probably done that training 150 times.  And each year when I update my materials, there are always plenty of new and juicy stories from my cases, and the news, to refer to.

I always start each training by asking – why are we doing this?  Is it still needed?  Well, apparently, it is.  Especially in the tech industry.  Have you been following the stories last week about Uber?  Can it be that such stuff still happens in work places in California?

For those of you who haven’t been following, here are the highlights.

  • The issues started on February 19th when Susan Fowler wrote a very compelling blog post detailing her experiences as a female engineer at Uber.
  • Her account is very troubling from an HR standpoint, including overt sexual overtures from management, and reports to HR that were incredibly mishandled.
  • Fowler contends that Human Resources essentially sided with management, protected the serial harasser, and lied to her and others about it; in legal terms that is called ratifying bad behavior.
  • By February 21st, Uber had retained former US Attorney Eric Holder to lead an independent review into Fowler’s claims.
  • Board member Arianna Huffington and the company’s Head of HR were also tapped to assist.
  • Then on February 22nd, the New York Times wrote an article titled “Inside Uber’s Aggressive, Unrestrained Workplace Culture.”  Indeed, that article brought to my mind images of the excesses portrayed by Leonard DiCaprio in The Wolf of Wall Street before the stock crash.
  • Then on February 23rd, Uber’s CEO met with over 100 of the company’s female engineers (the “Lady Eng Group“), who told him that the company has a “systemic problem” with sexism.

Wow.  How can this be?  13 years after AB 1825?  Haven’t businesses learned that harassment costs money?  Public embarrassment?  How much money does a company have to lose to take such claims seriously?  How many good (and typically female) employees need to exit?

After defending such claims for employers for over 20 years now, I know that not all harassment allegations are true, and that there are two sides to every story.  I also know that sometimes well-meaning Human Resources professionals are thwarted by management.  But I also know that company culture starts at the top, and if management doesn’t live the stated company values, the employees don’t either.  And if management endorses an aggressive bro-centric abusive environment, then its employees will too.

Or as one of my favorite hospitality clients likes to say “fish rots from the head.”

Fingers crossed for Uber that they get it right, and fix whatever issues are festering and detracting from their mission.  Or in the reported words of Ariana Huffington, stop hiring “brilliant jerks.”

A December 2016 publication from the EEOC titled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights” doesn’t exactly break new ground. It does, however, highlight issues that arise repeatedly in disability discrimination cases and, therefore, bear repeating. Here are the key takeaways:

  1. The definition of what constitutes a disability is broader than many realize. The guidance tells employees: “You can get a reasonable accommodation for any mental health condition that would, if left untreated, ‘substantially limit’ your ability to concentrate, interact with others, communicate, eat, sleep, care for yourself, regulate your thoughts or emotions, or do any other ‘major life activity.'” That’s the EEOC’s standard. California’s is even broader.

    Copyright: arquiplay77 / 123RF Stock Photo
    Copyright: arquiplay77 / 123RF Stock Photo
  2. As the guidance warns, employers deciding whether someone can perform the essential functions of a position or whether they pose a significant risk to others may not rely on “myths or stereotypes.” Instead, employers must base those decisions on objective evidence.
  3. Employers trying to gather objective evidence face conflicting obligations. On one hand, they need to understand the employee’s limitations so that they can make an informed decision on offering an accommodation. On the other, they are limited in terms of what they can ask by the employee’s privacy rights. The guidance cautions employees that they may need to disclose information concerning a mental condition when seeking a reasonable accommodation. A publication issued contemporaneously, “The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work,” informs healthcare providers that they also may need to make certain disclosures, provided that they have their patients’ written authorization. In light of these conflicting obligations, employers should focus on the employee’s specific limitations, rather than their underlying cause or diagnosis. Employers also need to ensure that any medical information they do receive is kept confidential.
  4. The way to gather objective evidence on an employee’s limitations and possible accommodations is through the interactive process. Employers need to engage their workers in a frank discussion of the essential functions of the position, whether the employee can perform those essential functions, and what accommodations may be available. I discuss what the interactive process requires in more detail here.
  5. Flexibility is key. The employer must be open to different accommodations that may enable the employee to perform the essential functions of the job. (Here’s a list of possible accommodations.) If a particular accommodation turns out to be ineffective, the employer must consider alternatives. If no accommodation will enable the employee to perform the essential functions of the position, the employer must consider moving the employee to other available positions or placing the employee on an unpaid leave. Considering the employee for other open positions requires more than telling them to apply for whatever interests them. In California, it requires giving the employee “preferential consideration.”
  6. Employers only need to offer a leave of absence if it will help the employee get to a point where he or she can return to work in some capacity. Also, employers don’t have to grant indefinite leaves.
  7. An employer doesn’t have to hire or keep people in jobs they can’t perform.” That encouraging statement comes straight from the EEOC’s guidance. It also cautions employees that “an employer does not have to excuse poor job performance, even if it was caused by a medical condition or the side effects of medication.”

This remains one of the more complicated areas of employment law. Employers that don’t understand the extent of their obligations expose themselves to costly litigation and government investigations.