Risk of employer retaliation must be removed for workers who claim discrimination

In this March 4, 2015, file photo, then-Attorney General Eric Holder speaks at the Justice Department in Washington. Uber CEO Travis Kalanick will take a leave of absence for an unspecified period and let his leadership team run the troubled ride-hailing company while he’s gone. Kalanick told employees about his decision Tuesday, June 13, 2017, in a memo. The announcement comes as former U.S. Attorney Eric Holder released a list of recommendations to improve Uber's toxic culture. (AP Photo/Carolyn Kaster, File)

In this March 4, 2015, file photo, then-Attorney General Eric Holder speaks at the Justice Department in Washington. Uber CEO Travis Kalanick will take a leave of absence for an unspecified period and let his leadership team run the troubled ride-hailing company while he’s gone. Kalanick told employees about his decision Tuesday, June 13, 2017, in a memo. The announcement comes as former U.S. Attorney Eric Holder released a list of recommendations to improve Uber's toxic culture. (AP Photo/Carolyn Kaster, File)

In February 2017, Susan Fowler, an engineer, left her job at Uber and wrote a blog post alleging sexual harassment, other forms of sex discrimination, and a massive failure on the part of HR to take any action. She claimed that her manager explicitly said she was “on thin ice” for reporting a manager to HR and that he would fire her if she did it again. Despite acknowledging that this threat was illegal, Fowler alleged that HR took no action against the manager because he was “a high performer.”

Fowler’s decision to leave on her own and then speak out online is becoming a more common one. In March 2015, Kelly Ellis, a former Google engineer tweeted: “Rod Chavez is an engineering director at Google, he sexually harassed me. Google did nothing about it. Reprimanded me instead of him.” In a stark description of the situation she faced, Ellis tweeted: “My choices were: speak up loudly, lose my job, burn bridges …, leave quietly …, or not say anything.” She had earlier tweeted the following: “I wonder how many other women don’t report or discuss their harassment, for their careers’ sake.”

Last week, Uber’s chief executive announced that he would take a leave of absence after an investigation by former Attorney General Eric H. Holder Jr. and his law firm into the company concluded that Uber must dramatically change its culture. Then, this week, under pressure from investors, he resigned altogether. Uber has released a lengthy report of recommended changes. Unfortunately, these recommendations will do little without help from the courts. The current law on retaliation, rather than protecting workers and encouraging justified complaints, actually incentivizes their suppression. Regardless of executive terminations and realignment of corporate values, the way courts treat these claims and the resulting advice that legal departments give will continue to prevent meaningful changes in any corporate culture.

Two employment law doctrines — the “reasonable belief” doctrine and, what we call, the “manner of the complaint” doctrine — inhibit employees’ willingness to display justified anger and other emotions by creating unrealistic standards for employee reporting and classifying a large number of complaints as unprotected. This inhibits the useful airing of problems that require management attention, fomenting worker dissatisfaction and even leading to psychological and physiological problems for individual employees that negatively impact the workplace as a whole.

The choice made by these engineers is not limited to tech companies or women, and it is not new. Risk is a reality when employees complain about discriminatory comments or behavior. Often it ends one’s career and leaves little legal recourse. Fear that management will retaliate against the complaining employee rather than focusing on the improper or discriminating behavior incentivizes workers to suppress emotion and try to live with the problem. But the problem rarely ends with that worker.

The recommendations in Holder’s report are certainly a good place to start. But without basic changes to the way in which courts evaluate retaliation claims, the report’s suggestions are simply not enough to create serious change. Even with motivated executives and a better system for handling complaints, the fact that courts routinely dismiss retaliation claims will continue to shape legal advice to company heads. If there continue to be no legal ramifications for bad behavior, true change will be hard to come by.

Leora Eisenstadt is an assistant professor in the Department of Legal Studies at the Fox School of Business at Temple University. Deanna Geddes is an associate professor and former chair of the Department of Human Resource Management at the Fox School of Business at Temple University. Their article, “Suppressed Anger, Retaliation Doctrine, and Workplace Culture” will soon be published in the University of Pennsylvania Journal of Business Law.

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