Uber is Under Fire, Again, for Sexual Harassment

Uber, the online transportation company whose app allows its users to hire private drivers, is making headlines again. About a month ago, angry customers began tweeting the #DeleteUber hashtag after Uber decided to suspend surge pricing during a taxi strike at JFK airport in protest of President Trump’s immigration ban. Customers accused Uber of strikebreaking and taking advantage of the immigration ban in order to promote itself.

The #DeleteUber hashtag has again appeared on social media following a claim of sexual harassment by a former employee.  Susan J. Fowler, a former Uber engineer, released an essay reflecting on her two year employment. She described it as “a strange, fascinating, and slightly horrifying story,” recounting a time when a manager propositioned her for sex.

Uber’s Response to Sexual Harassment Allegations

Fowler claims that she complained to Human Resources about her manager’s request for a sexual relationship. In response, H.R. told Fowler that this was his first offense and that they were not going to reprimand him for his behavior. Instead, they made Fowler feel like she was in the wrong and encouraged her to transfer to a new team or risk getting a bad review from her manager. Feeling like she had no other choice, she ultimately transferred teams. Fowler later discovered the manager had propositioned several female Uber employees for sex and H.R. turned a blind eye to his behavior because he was a “top performer”.

In response to Fowler’s essay, Uber CEO Travis Kalanick has hired two attorneys to independently investigate the accusation.

What is Sexual Harassment?

Sexual harassment is a type of employment discrimination consisting of unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

There are two types of sexual harassment: quid pro quo and hostile work environment. Quid pro quo harassment occurs when a supervisor or an authority figure requests sex, sexual favors or a sexual relationship in exchange for either not firing or punishing the employee or in exchange for favors, such as a promotion or raise.

Hostile work environment harassment occurs when there are frequent or pervasive unwanted sexual advances, comments or requests. It can also occur when there is other verbal or physical behavior, like sexual jokes, displaying inappropriate offensive material (such as watching porn on your computer screen in the workplace), or persistent unwanted interactions, such as asking for dates continually.

Other Allegations of Sexual Harassment

According to Fowler’s essay, there were several female employees who complained that the same manager propositioned them for sex and when these women reported the behavior to H.R., they were told it was the manager’s first offense, just like Fowler. Since Fowler’s essay surfaced, another female employee has come out and said her manager groped her breasts at a company retreat in Las Vegas. Other Uber female engineers have acknowledged that Uber has a systemic problem with sexism. There may be more stories of sexual harassment that have not been publicized due to fear of retaliation or non-disclosure clauses in their employment contracts.

Can Fowler Sue Uber for Sexual Harassment?

While Fowler certainly can sue Uber for sexual harassment, she is unlikely to prevail. Her essay recalls an instance where her superior requested she engage in a sexual relationship with him. The sexual conduct did not appear to be made a term or condition of her employment at Uber. Further, Fowler was neither promised a benefit if she acquiesced, nor threatened harm if she refused. For this reason, a claim of quid pro quo sexual harassment would not be found.

Neither would a court of law find Uber guilty of a hostile work environment. Fowler describes a single incident. One of the key elements of hostile work environment sexual harassment is that the conduct must be both severe and pervasive. In other words, the behavior must last over time, not just be a singular incident. It is important to note that the conduct must be pervasive with regard to a particular employee and continuous over time. Even though Fowler’s manager propositioned other women at Uber for sex, it is unclear whether he made sexual advances to any one employee more than once and over a long period of time. What we do know is Fowler was approached once. Without more evidence of continuous harassment, hostile work environment sexual harassment would not be found.