Uber In-House Counsel Under Scrutiny in Alleged Harassment of Female Engineer

The Recorder - February 21, 2017 - By: David Ruiz

SAN FRANCISCO - Ride-hailing service Uber Technologies Inc. is responding to a former employee's allegations of sexual harassment by a supervisor with an internal review led by former U.S. Attorney General Eric Holder Jr., top executives, board member Arianna Huffington and the in-house legal department.

Because the claims against the company include the female engineer's charges that her repeated complaints to Uber's human resources department were stonewalled, however, plaintiffs employment lawyers said Uber's in-house legal department could share some of the blame.

"If [the in-house department] didn't know, then they failed to properly train their human resources department," said Sharon Vinick, a plaintiffs attorney at Oakland-based Levy Vinick Burrell Hyams. She said she "can't imagine" how a company of Uber's size would have human resources employees that aren't trained to report internal allegations of sexual harassment to in-house counsel.

"Alternatively, if they did know and did nothing, honestly, that's just appalling."

Former Uber site reliability engineer Susan Fowler wrote on her personal website on Feb. 19 about sexual discrimination and harassment she says she faced in November 2015 from her direct manager, in a post that quickly went viral. Fowler said her manager told her about an open relationship he and his girlfriend were in, and that the manager was looking for new sexual partners.

"It was clear that he was trying to get me to have sex with him," Fowler wrote, "and it was so clearly out of line that I immediately took screenshots of these chat messages and reported him to HR."

The manager wasn't fired or severely reprimanded, Fowler asserts. In the blog, Fowler said HR workers told her that this was the manager's "first offense" and upper management told Fowler that her manager was a "high performer." Fowler said she met other female engineers who made similar reports against the same manager, but human resources employees repeated the same excuse: it was the manager's "first offense."

"It was such a blatant lie that there was really nothing I could do. There was nothing any of us could do," Fowler wrote. "We all gave up on Uber HR and our managers after that," she said.

A day after Fowler's post, Uber responded by retaining Covington & Burling partners Eric Holder and Tammy Albarrán, to "conduct an independent review into the specific issues relating to the work place environment raised by Susan Fowler, as well as diversity and inclusion at Uber more broadly," said Uber chief Travis Kalanick in a memo sent to employees.

Also included in the review panel are board member Huffington, chief human resources officer Liane Hornsey and associate general counsel Angela Padilla. (In June, Uber had hired Holder to write to lawmakers in three states urging them not to require mandatory background checks for Uber drivers, arguing such requirements have a disparate impact on minorities.)

Padilla did not respond to a phone call from The Recorder or an email seeking comment Tuesday. An Uber spokeswoman forwarded the text of Kalanick's memo, but declined to answer any specific questions about the legal department's role in the review and how often in-house lawyers meet with the human resources department.

Attempts to reach Fowler for comment also were unsuccessful on Tuesday afternoon.

Kelly Armstrong, partner and founder of the Armstrong Law Firm, said Uber should have launched an investigation immediately after a complaint about sex harassment was filed. "As soon as the employee complained about sexual harassment, an investigation should have commenced immediately," Armstrong said. "Every company is different, but if a company has an in-house attorney, usually they are overseeing the investigations. It looks like they failed to start an investigation, and then in-house counsel failed to oversee the process."

For years now, tech companies in Silicon Valley have fought lawsuit after lawsuit claiming sexual harassment and discrimination, many with similar complaints about failure to reprimand alleged harassers and about retaliation against those who complain. In August, a former Apple Inc. in-house attorney sued the company for alleged age and gender discrimination, and last year, a survey of women in Silicon Valley tech companies, startups and venture capital firms found that 60 percent of respondents had experienced unwanted sexual advances at work. The former Uber engineer said she experienced that on her very first day on the job.

Amid the controversies, Holder has recently become a Silicon Valley favorite upon returning to Covington & Burling. Aside from representing Uber in the previously mentioned matters, Holder also lent his services to Airbnb in July. The San Francisco-based home-sharing service hired Holder to craft policies to address racial discrimination and bias on the company's platform.

Albarrán, the second Covington partner named in Kalanick's memo, is a San Francisco-based partner who advises public companies, securities brokerage firms and financial services firms on litigation, investigations and anti-corruption matters.