Lessons Learned from the Holder Uber Report

July 27, 2017

Uber, the massive ridesharing company, has been in the dog house in recent months. On February 9th, 2017, Susan Fowler, a former Uber engineer, wrote a scathing account of sexual discrimination, harassment and enabling of the same that occurred during her time working for the company’s Bay Area headquarters.

The company was stung by her allegations, and brought in former attorney general Eric Holder to lead an investigation into Fowler’s allegations and how widespread the workplace climate problem may be.

While the findings could have been much worse, the problem was pervasive enough that the company saw fit to fire 20 employees and managers and discipline a number of others.

Last month, Holder and his team from the Covington & Burling LLP law firm wrote a 13-page report with a number of specific recommendations for Uber, and Uber’s board of directors voted unanimously to adopt all of Holder’s policy recommendations. Travis Kalanick, the abrasive and embattled CEO, has taken a leave of absence.

Susan Fowler, for her part, was unimpressed by the report, tweeting: “Ha! Yeah! They’ll never apologize. I’ve gotten nothing but aggressive hostility from them. It’s all optics.”

Nevertheless, while the report may not go far enough (there was no recommendation to go back and offer recompense or apology to those who may have been negatively affected by the company’s problem climate in the past), the report does perhaps function as a good starting point for an anti-discrimination, anti-harassment compliance checklist for other companies and for the HR professional who advise their executives.

What follows is an abridged summary of the key points in the Holder report.

Use performance metrics to hold senior leaders accountable. Holder recommended that Uber develop some diversity standards and other metrics that measure responsiveness to employee complaints, increase diversity in the work force and increase employee job satisfaction, and hold senior managers to them.

Increase the profile of Uber’s head of diversity. Holder recommended that the current Head of Diversity position be renamed Chief Diversity and Inclusion Officer and report directly to the CEO or COO.  “This action is intended to reflect the elevated status of this role and demonstrate the company’s commitment to this issue. It is equally important that the role address both diversity and inclusion,” Holder wrote, continuing, “Diversity is generally viewed as focusing on the presence of diverse employees based on religion, race, age, sexual orientation, gender, and culture. Inclusion, on the other hand, focuses not just on the presence of diverse employees, but on the inclusion and engagement of such employees in all aspects of an organization’s operations.”

Holder also recommended the creation of a multi-disciplinary diversity advisory board to report to the new Chief Diversity and Inclusion Officer position.

Install an independent chairperson of the board. Note that Holder pushed both for a COO position and an independent chairperson, each would serve to limit the power of Travis Kalanick, whose behavior and public statements are widely perceived to have contributed to the organization’s overall climate and leadership problems regarding the workplace climate.

Human services record keeping. Holder urged Uber’s HR team to improve record keeping, to include using software designed to track employee complaints, as well as log prior complaints against specific individuals, so that HR and leadership can easily see which employees may have had multiple complaints against them. Uber’s systems should also be able to tell them if problems tend to arise under specific managers, or in particular departments and work areas, so that senior managers can intervene with the managers involved. Holder also recommended that management emphasize the importance of record-keeping, and impose consequences for failing to adhere to new record-keeping requirements.

Track settlement and separation agreements with employees. 

Mandatory leadership training for key senior management/senior executive team members. The Holder report specifically mentioned emphasizing the following training subjects:

  • Training to exhibit and model inclusive leadership and combat implicit bias;
  • Training to encourage a culture in which everyone gets heard in a manner in which they are comfortable and employees feel safe to propose ideas;
  • Training in how to set organizational goals in a corporation of Uber’s size;
  • Training in how to be aware of and implement necessary corporate controls, as well as how to identify and flag breakdowns in corporate controls;

Mandatory human resources training. “Uber should train Human Resources personnel on the effective handling of complaints, including the proper and thorough investigation of complaints of harassment, discrimination, or retaliation, as well as the appropriate documentation of investigations and record-keeping, and develop policies and processes relating to record-keeping. Training should include how to identify when employee complaints or disciplinary decisions should be escalated to the Legal organization for review.”

Mandatory manager training. Training should focus on diversity, inclusion and unconscious bias. All managers should also undergo training on general human resources topics, including equal employment opportunity compliance, record keeping, bias, harassment, discrimination and retaliation compliance, and handling performance-related issues and complaints of unfair treatment.

Increase management support of HR. “Senior leadership at Uber should publicly support and embrace the value of Human Resources not only as a recruiting organization, but as an organization that works to protect and retain Uber’s most important asset: its people. It is critical to the goal of establishing trust that Human Resources be seen as vested with true authority to act on all issues affecting employees. Leadership needs to further demonstrate its support by following through on recommendations made by Human Resources with respect to employment-related actions and ensuring that Human Resources is properly resourced with financial support and personnel to properly carry out its role.

Uber should consider adopting a zero-tolerance policy for substantiated complaints of discrimination and harassment, without regard to whether an employee is a “high performer” or a long-term employee.

Provide a robust and effective complaint process. Uber should develop and communicate multiple avenues for lodging a complaint, including an employee’s immediate manager or next-level manager, the organization’s Human Resources Business Partner, or theIntegrity Helpline. This encourages employees who may otherwise fear retaliation to come forward, knowing that there are multiple avenues they can utilize if they have a concern. Finally, Uber should ensure appropriate processing and tracking of complaints and invest in appropriate Human Resources tools, including complaint tracking software that is robust, secure, and accessible by those who need information on a need-to-know basis. This will help ensure that complaints are dealt with promptly, appropriately, and consistently, and will lead to better tracking and data collection.

Establish protocols for escalating complaints. Holder recommended that Uber create a protocol for alerting the company legal department, to ensure that policies and remedies were consistent company-wide. Any complaint involving harassment or discrimination that results in discipline but not termination should be elevated to legal. Furthermore, any termination of any employee who has made harassment or discrimination complaints, has taken protected leave such as FMLA or military leave, or who may otherwise be in a protected class under the law should be brought to legal before anybody gets pink-slipped.

Devote adequate staff and resources to HR. Uber will be hiring an HR consultant to help them determine whether they have sufficient HR staff to be effective. Holder also recommended hiring new HR partners throughout the company’s areas of operations. The report cited a SHRM report that said the average number of HR staff for a company of Uber’s size is 57.

Publish diversity statistics regularly. 

Target diverse sources of talent. The report specifically mentioned recruiting from historically black colleges and universities and hispanic-serving institutions.

Implement a sponsorship program. 

Employ blind resume reviews. With a blind resume review, references to sex, gender and other potential sources of improper discrimination would be eliminated – at least at that stage of the interview. The Holder Report also recommended Uber implement a blind review of exercises used in selection of technical employees.

Adopt the “Rooney Rule” from the NFL. Under the “Rooney Rule,” NFL teams must interview at least one minority for every coaching and assistant coaching spot that opens up. The rule has resulted in a substantial increase in the number of minority coaches. Holder’s report recommends that Uber adopt the Rooney Rule and make it a company-wide policy to interview at least one minority and at least one woman for every vacancy.

Review Benefit Offerings. The Holder report recommended Uber review and update its benefit package to attract a more diverse workforce. The report specifically mentioned expanding benefits that may attract women of childbearing age, and ensuring a smooth transition back into the workplace after taking maternity leave.

Route all diversity initiatives through a central office. While the report recommended that Uber encourage and recognize managers who took initiative to further the diversity cause within the company, Holder also recommended that all diversity initiatives be routed through a central point so that they can be consistent throughout the company, and reviewed by the corporate legal team for compliance with applicable laws.

Expand anti-discrimination and harassment protections by company policy. Uber will adopt policy language that protects employees from harassment and bullying not just from managers and fellow employees, but also from vendors, clients, contractors and other third-parties encountered at the workplace. Uber was also urged to consider implementing a zero-tolerance policy to be enforced no matter how high-performing the offending employee.

Enable intra-company transfers. Holder recommended Uber have an HR employee screen transfers and assess whether the employee is seeking transfer due to a difficult or hostile work environment or problematic manager, or if a supervisor is trying to block a transfer for improper purposes. Holder also recommended tracking transfer requests to see if any pattern is established.

Make promotion requirements clearer.

Implement continuous feedback procedures.

Increase flexible work opportunities. For example, the ability to work from home or to work non-conventional hours, which may increase the overall corporate friendliness to parents.

Require exit interviews with HR or some other neutral third party when an employee resigns or is fired.