Learn Your ‘Uber’ Lesson: An Ounce Of Prevention May Well Be Worth A Really Heavy Pound Of Cure

Lisa M Lamm Bachman

By Lisa Lamm Bachman

Following a month-long , intensive investigation into allegations of sexual harassment, discrimination and retaliation triggered by the blog post of an Uber Technologies, Inc. former employee, Susan Fowler, investigators Eric Holder and Tammy Albarran of Covington & Burling LLP recently issued a detailed report to UBER’s board of directors. The investigative report also included numerous specific recommendations for improving the workplace environment, revising the company’s policies and practices, and ensuring the company’s commitment to creating and maintaining a diverse and inclusive workplace, all of which were unanimously adopted by UBER’s board of directors. In short, although UBER now has some serious work to do, other companies would benefit from considering whether to adopt all or a portion of the recommendations as well. The overarching themes imbedded within the recommendations focus on setting the tone at the top and establishing accountability throughout the organization. Aft er a careful analysis of the recommendations, it is unlikely that many companies will actually need to take such extreme measures as requiring the CEO to move aside or step down altogether. However, starting now, there are a number of objectives and goals that companies should evaluate in order to not only prevent an UBER-like upheaval, but also strengthen and improve the workplace environment. Consider making a small investment of time and resources in the following action items.

What training programs are offered to employees and senior management and should the training programs be updated or offered more frequently?

In order to cover all aspects of an organization, it is recommended that specific separate in-person mandatory training programs should be offered to senior management or senior executive team members, human resources representatives, managers and employees who regularly interview candidates. For senior management, such training could be part of a broader leadership program with an emphasis on effectively leading employees, setting and keeping organizational goals, and fostering inclusive leadership that prevents implicit bias. Training for human resources representatives should include proper handling of employee complaints, conducting and documenting thorough investigations of employee complaints, and how to identify whether an employee complaint or subsequent discipline decision should include review by legal counsel. Since managers work closely with employees, the training program should be extensive for first-time managers and repeated on a regular basis thereafter. It is recommended that manager training include a focus on diversity, inclusion and recognizing implicit bias. However, just as important for management to be effective, training must include basic strategies for effective communication with employees, how to provide constructive feedback to employees, how to appropriately conduct employee performance reviews, how to address performance-related issues, and handle employee complaints. Managers would also benefit from training that addresses basic human resources issues including discrimination, harassment and retaliation matters so that such issues are recognized and elevated to senior management or legal counsel as necessary. Finally, interview training should include how to conduct inclusive interviews and basic interview skills, including a standardized interview process, suggested questions for candidates and how to evaluate the candidate afterward.

What is the status of the human resources department and is there a well-defined complaint process?

It is recommended that company leadership should work to view the human resources department as more than just an employee recruitment department. A company’s human resources department should be fully equipped and supported in its efforts to protect and retain the company’s employees. Such support includes ensuring that the human resources department is adequately staffed and funded, as well as supported by leadership with regard to making recommendations concerning employment-related issues. In this regard, a strong show of leadership support for the human resources department would include adopting a zero-tolerance policy for substantiated complaints of harassment and discrimination. Consistent application of a zero-tolerance policy would prevent excusing or disregarding complaints against long-term employees or high performers. In order to promptly and adequately address complaints of harassment, discrimination and retaliation, companies must have an effective complaint process for employees to utilize. The complaint process includes ensuring that all employees know how and to whom they can report workplace complaints, including alternative levels of reporting to encourage employees to report their complaint to a source other than their immediate supervisor if concerned about potential retaliation.

Are the anti-harassment and antidiscrimination policies current and what other steps should be taken to enhance prevention of workplace complaints and misconduct?

While many companies typically have standard anti-harassment and anti-discrimination policies set forth in an employee handbook, companies should consider updates to the policies that include prohibiting conduct which appears to be directed toward another employee because of their protected characteristics, despite whether the conduct is unlawful. Likewise, while many managers believe that they are capable of handling and resolving certain employee complaints, company policies should require managers to immediately report all complaints or incidents of discrimination, harassment or retaliation to human resources for further investigation. Employees should also be protected from third-party harassment and discrimination, which starts by including a specific policy prohibiting such conduct and notifying employees to report such incidents to their manager or the human resources department. Other specific policies to consider implementing include prohibiting romantic or intimate relationships between individuals in a reporting relationship, prohibiting consumption of alcohol during core work hours, and prohibiting the use of non-prescription controlled substances during core work hours, work events, and work-sponsored events. With regard to alcohol consumption, employees should be encouraged to consume responsibly and alcohol-related misconduct should be addressed immediately. Companies are also encouraged to review reimbursement policies and limit or restrict budgets for reimbursing alcohol-related events.


Lisa Lamm Bachman, managing partner of the Minneapolis office of Foley & Mansfield, focuses her practice in employment law and litigation. In her 25 years of practice, Lisa has tried numerous cases before both bench and jury, and has handled more than a dozen appellate proceedings. Lisa regularly consults with businesses and HR professionals to provide legal advice on a variety of employment-related matters, including conducting training presentations for employees and managers concerning anti-harassment and anti-discrimination policies.