The Spectacle of Uber

What UK tech can learn where Valley Tech failed and what Valley can learn from us.

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Susan Fowler’s piece on her experiences at Uber cannot help but highlight to us in the IT work, yet again that our wonderful technology companies have a hell of a lot to learn about both ethical practise and inclusivity.

The UK has a much better record and context for workers rights than the USA. The combination of UK based work to align itself ot EU legislation on workers rights over the last 45 years and beyond has combined to improve workers rights faster and more cohesively than the USA, though this might change long-term after Brexit. The framework around company activity and operations is much much stronger and gives workers much better rights. There is a lot the US Tech can learn from UK Tech and indeed, UK operations more generally on this.

As someone who has run and does run organisations in this space and others, who has had to take responsibility for HR policy in those organisations, including processing grievances and conducting disciplinary activities, I absolutely despair at both the dismissive nature of US tech companies to the importance of inclusivity, the seriousness of breaches and sometimes even their attitudes towards their employees.

I am reading Susan Fowler’s experience at Uber and it starts off quite innocuous. Yet, as I read through the first paragraphs, her experiences with HR started to ring alarm bells.

[EDIT: Having now read it, there are a host of things that HR could learn from this. I’ve had to concentrate on 10 items just to keep it readable. I’ll revisit to complete the job]

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.

I’m sorry what? OK, so this is not an appropriate way to behave in a business context. There isn’t any way an HR department would let that go. Indeed, Ms Fowler correctly assumes:

I expected that I would report him to HR, they would handle the situation appropriately, and then life would go on

Except they apparently didn’t. Let me rephrase then, there isn’t any way an HR department worth their salt would let that slide.

Before I go on, it is definitely the case that life doesn’t go on after that sort of event. A statement was made against someone that can be attributed to one single person. That is now a known fact, even if HR attempt to maintain confidentiality, or even if the other person never knows about the issue, since the person who experienced it also, legitimately holds concerns that carry over into future work. People are not memoryless nor can we expect them to be.

Assuming verbatim wording, HR acknowledge it was a clear case of sexual harassment, which is a direct admission of culpability on the part of the company. Believe it or not this is the first thing that is wrong. It is something HR themselves should never admit to without conducting an investigation, since they could also be taking culpability as agent of the organisation, for something they didn’t do. At the time of Ms Fowler’s complaint, they didn’t know the truth, or otherwise of the statement. Hence, words should be carefully chosen to state an acceptance of the experience of an employee (and not denigrate it) and for empathy, without casting judgement or inference about what could be going on.

“You say you feel this was a case of sexual harassment”

“From what you have said, it seems we have to investigate your claim of sexual harassment”

They are both better, but not in any way perfect. The most preferably is to word it so as to not wording implying sexual harassment at all, as it may start off as that experience, but another offence actually ends up being the point of the claim, sometimes one much more severe. This is the same in criminal trials, where criminal behaviours could find mitigating circumstance for the initial offence, which then happens to open up a conviction for a second thing.

HR have to guard themselves and the company against these possibilities. They live between two parties at all points in their existence. It is possible to simply state the facts of the matter, ad of the experience to confirm this is what the alleged victim is experiencing, in the person’s own words, as they experienced it (that statement will be used during the investigation). Subsequently informing the individual the company will opened an investigation into the claim, in accordance with their policies (you have policies for this, right?). For example:

“You state that you feel harassed because a member of staff has made inappropriate comments towards you regarding your gender. We’ve noted this and if you wish to make a formal complaint, we will meet with you at an interview to take a formal statement, you can bring someone with you to support, together with evidence of your grievance and we shall carry out an investigation into the claim, before responding 14 days after that.

If you are still unhappy with the outcome, you have the right to appeal the decision within days of receiving the outcome.”

All this should also be documented in employee handbooks and policies. This is an essential mechanism of information. Basically giving the employee comfort that action will be taken and also informing them of the process and confirming it with them.

Yet, Uber’s HR apparently considered this 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.

There are three things here. The first is the statement that it is the employee’s first offence. I find the behaviour of the HR department inconsistent here. If they were not aware of the harassment or of the inclination towards such harassment, they shouldn’t have admitted it so readily. It isn’t fair on the victim to raise their hopes and feign consideration, nor arguably is it fair on the alleged perpetrator, who may find themselves defamed in the context of a false accusation the company cannot then prove.

However, saliently, it doesn’t actually matter if it’s their first offence. Sadly, statements like this are often taken from the number of proverbial violations on record at HR. If someone has no violations, it simply means they have not been been processed through the disciplinary system and been found “guilty” of misconduct or some other misdemeanour. They may have carried this out dozens of times, but if they have not been reported, or processed to conclusion and that conclusion results in a formal warning, or termination of employment, after a gross misconduct offence at that organisation, they don’t have an offence on record. Indeed, it isn’t always legal to include all claims on record, since heresay and false claims are not permitted to be stored, which is important on a number of fronts, including data protection.

This is the system holding a position which works in favour of repeat offenders. If they have committed 10 offences in the eyes of employees, yet never been found guilty of them, there is no record of an offence. Hence, the next time it happens, the HR department and company have no visibility of it.

Without that visibility, it will genuinely look like a first offence (nothing on record). Any HR department taking the reluctant stance Uber HR took, will never discipline someone who has committed dozens of offences. This naturally creates a gap between the understanding the company and HR have about the situation and the experiences of the victim.

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The bigger the gap, the worse the culture, since we are talking about the worst behaviours a company is willing to accept. As Uber is an organisation working to optimise, with data, this is a huge blind spot and one which I find extremely surprising. It seems pretty clear that not all departments dogfood Uber’s Coolaid. f I didn’t have the experience of the tech industry that I do, I’d be inclined not to believe it, but I know better, sadly.

Secondly, though this pure speculation, the language HR used seems to indicate another factor at work. It could be that this person potentially has a “protected characteristic” of their own and for HR, handling this sort of experience, where one person with a protected characteristic says and does an inappropriate thing in the direction of someone else with what the law considers a protected characteristic (read that as “something someone cannot readily change, or attempt to change about themselves”) means processing a grievance with two parties by using two secret testimonies and evidence bases. This is one of their nightmare scenarios. HR are already way past their understanding, though absolutely not their remit.

The solution is pretty easy though, take one as a level playing field with another (given the first offence from the man happened first), give the verbal warning and if they persist, a written warning and of they persist with that, take them through a disciplinary and their subsequent supervisory period, in a constructive way. In the UK that’s conventionally 12 months or so, then the record of the warning is wiped. In the UK the ACAS guide provides an explicit set of guidelines which should be followed in the event of a dispute or grievance.

Tip: In presenting the written findings on the grievance, referencing the policies beforehand, make it clear that the company does not expose the existence of evidence supplied in confidence. That way, it is an expectation of all parties that such information remains classified and also highlight that purpose serving data protection.

Sadly, many if not most employees don’t understand what HR do. As well as stating that as fact, it is a call-to-action. People, learn yours! All parties should. I don’t say that as a way to denigrate Ms Fowler’s experience. But why?

Here’s a classic. A grievance/complaint isn’t a complaint against an individual, it’s a complaint against the company for creating a situation which allows that individual to behave that way towards the aggrieved party or others in the company. Read this as a complaint against its culture, which is ultimately what Susan Fowler’s experience in Uber was about. It is a subtle, but very very important distinction, both in organisational positions, but also in the eyes of the law.

Susan Fowler had every right to make a complaint against Uber. That complaint should have gone on file and should have been processed as a complaint against Uber regardless of whether or not this triggered subsequent disciplinary action against the other individual. Hence, regardless of whether or not it’s the person’s first offence, the company itself holds culpability and it would be up to the company to decide to take action against the other party. The other party answers to the company, not Ms Fowler.

Yet, the response from HR was quite surprising in my book.

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…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 agree, it isn’t a choice in real terms. It’s Hobson’s choice. A choice between a frying pan and a fire.

However, at that point, Uber would be totally correct. They wouldn’t be able to do anything about the other individual retaliating, even if they wanted to, since no record of an offence exists. In a way, the HR rep is correct in what they are saying. “Retaliation” is “allowed” because that person hasn’t been caught first. It isn’t that Ms Fowler was give a straight choice per se. They are arguing Susan Fowler had the chance to leave a context where it was known by all parties that there was no protection for her as a whistle-blower (see next section), and the impact of that was detrimental to her performance reviews.

Yet, this is arguably grounds for a second, parallel grievance by Ms Fowler. Technically, Uber have allowed a position where choice number 2 is unfortunately a correct statement, off the back of a failure to handle the situation appropriately. In the UK, appropriate handling of the situation is basically in line with ACAS Guidelines.

This is highly unfair and discriminatory position and one which to me, looks to have resulted from a failing of HR elsewhere in the process. This failing isn’t this other party’s fault, so it cannot be blamed on the other party without the risk of subsequent action by this other man. It was a direct failing of Uber for having a net it could fall through. This is one of the reasons grievances can be attributed to companies not individuals.

In the UK we have “whistle-blowing” laws initially enacted through the Public Interest Disclosure Act 1998. The law does not permit a whistle-blower to be treated unfairly or lose their job simply by reporting unfair or unlawful practise within an organisation. Despite the existence of such protection, many organisations do discriminate and many people fear reporting such practise. Especially in the context of the UK’s recent changes to employment tribunals which result in up-front fees to bring a case. They don’t away with it because it’s not illegal, they get away with it because people don’t bring cases. Again, Hobson’s choice. Eat or fight.

The US on the other hand, enshrines their whistle-blowing laws as a guaranteed freedom of speech, which was also solidified it in their own act in 1989. This is definitely in the public interest, and it was extended to the intelligence community under the Obama administration in 2012, with the policy directive “Protecting Whistleblowers with Access to Classified Information" though I’m sure Uber will be looking at their legal position carefully and it’s sensible to do so.

“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”).”

Grievance time. Ms Fowler followed the process and at this point, and indeed, arguably before, it’s definitely worth submitting a formal complaint to the company stating in clear terms the claims made against them.

“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.”

*sigh*. Yep totally predicted. See section “A First Offence… After the last one”.

“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.”

In Susan Fowler’s article, the entire group of aggrieved women could also have submitted a collective grievance. Hence, if 10 women experienced it, 5 enter a grievance individually and one collective one, that is 6 grievances Uber HR have to process. It isn’t for the purposes of clogging the system. It is to trace and catch systemic effects, which can go unnoticed at individual level. Collective grievances also allow supporting statements to be made by the co-aggrieved and crucially, catches dysfunctional culture.

As an aside, it sounds like he was managed out. Indeed, it’s possible (though again, speculation) that Uber HR were taking it more seriously than they let you believe after the collective approach and his work was slowly being paired on to everyone else. Making it less risky for Uber to get rid of him.

It’s not at all clear to myself or Susan what the following means:

“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.”

This implies a clear case of hypocrisy, though it’s not clear if Susan Fowler had performance issues which she was not aware of, since documents were not supplied (a breach of HR process and in the UK, the ACAS guidelines) or there had been verbal accusations without documentary proof being kept (also a breach of HR process — since that should have been part of the objectives). Hence, there isn’t a way this could legitimately exist and Uber HR be in the clear. HR have no documentation about offenses and yet, they use “undocumented performance problems” as an issue.

Where did these come from? What was the accusation? Why wasn’t Ms Fowler told about these? There are multiple failings here, both cultural and procedural that should have been addressed.

“ My manager said that the new negative review I was given had no real-world consequences”

This one statement suddenly moves it into the world of fantasy. Performance problems have prevented the “upward”, or rather, sideways, trajectory of an employee. The key is to understand that negative performance reviews impact the current position of an employee, who then cannot progress up the ladder or sideways into another organisation at the right time for them. They may wait another year or two to move upwards. That is time they don’t get back.

Employees don’t get it back elsewhere either, so an accurate review is necessary for the fairness of that evaluation to take place. Otherwise it is detrimental and does have real world consequences. Again, for a company who’s premise is systemic optimisation, this also strikes as surprising, for the second time in an article.

10: Tokenism or Protectionism NEVER works!

However, I can imagine a situation where Susan Fowler was so good at her job her management line knew they couldn’t replace her. So they kept her performance in check by stating to her that she needed to improve, whilst stating to HR that she was an excellent employee. This is a gaming tactic and has even happened to m during my younger years. However, it never results in what managers think it will. It usually results in that employees leaving, almost 100% of the time. The psychological double is a really bad place to be for the stress.

“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.”

Sure enough. It was all about the manager.

Conclusion

It’s no great secret that Uber’s experience isn’t unique. I still find myself shocked when SV tech fail to learn from the experiences of the likes of Julie Ann Hovarth at GitHub, Gamergate and more. More articles have appeared to support the existence of problems within Uber and I suspect they’re not alone. Systemic failures are just that. Systemic. They result from a number of factors, not least the unwillingness or inability of leadership to address problems early and forcefully.

Such practise isn’t meant to stifle culture or creativity, it’s meant to enhance it, since diverse companies are 3.5 times more innovative. It also attempts to harmonise fairness in an environment which can stray too close to the line. Tech hasn’t come up with a sufficient answer to dynamic HR yet and this will continues to bite companies in the hiney until it does. They might want to revisit things, starting from the top.

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Written by

EA, Stats, Math & Code into a fizz of a biz or two. Founder: Automedi & Axelisys. Proud Manc. Citizen of the World. I’ve been busy

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