How Uber got the message

Editor’s Note: Susan Antilla is an award-winning financial columnist and author of “Tales from the Boom-Boom Room: The Landmark Legal Battles that Exposed Wall Street’s Shocking Culture of Sexual Harassment.” She has written about Wall Street, securities regulation and gender discrimination for The New York Times, Bloomberg, and TheStreet. The views expressed here are her own.

An innocent mistake. That’s what management of Uber Technologies Inc. reportedly told engineer Susan J. Fowler when she complained in 2015 that her manager was sexually harassing her.

The boss had sent her a string of suggestive messages. “It was clear that he was trying to get me to have sex with him,” Fowler wrote Sunday in a stunning 3,000-word essay on her blog that quickly went viral.

Fowler took screenshots of the chat session and reported him to human resources. Yessiree, that’s sexual harassment all right, HR said. But it was his first offense and he was a “high performer,” so a warning would suffice, they told her. Just an innocent mistake by a corporate star.

Not to quibble here, but even an HR rookie would know that harassers are not inclined to one-offs. Indeed, Fowler said she later came across other women who’d had similar experiences with the man, who no longer works at Uber.

CEO Travis Kalanick said Monday that he’d hired no less than former US Attorney General Eric Holder to conduct an independent review into the issues Fowler raised. Kalanick had said in a Tweet on Sunday that the behavior Fowler described was “abhorrent & against everything we believe in.”

It was an encouraging reaction, but also a head-scratcher. In its dealings with Fowler and the other women she described in her post, did Uber HR go rogue in the face of “everything” the company’s CEO says it believes in? Did the CEO fail to communicate his laudable position to those charged with managing personnel and shaping company culture?

Or, more likely, was this perhaps not the stated priority the CEO says it was? We can only hope that an honest investigation carried out by someone with Holder’s experience will produce detailed answers to these questions.

Spokeswoman MoMo Zhou declined to answer specific questions that I sent by email, citing the ongoing investigation.

Investigating what happened with Fowler and others at Uber is a good thing, but it doesn’t change the fact that with the standout exception of employees who the bosses wanted to get rid of anyway, sexual harassers have long enjoyed protection by corporate managements. It isn’t just that they often get to keep their jobs. They additionally benefit when, as is common,

company policy requires employees to use private arbitration in lieu of suing in court. The tidy arrangement keeps the bad boys from suffering a public record of accusations against them and gives them the opportunity to label their acts of misconduct as “first offenses” in perpetuity.

Add to that the standard policy that women who settle their cases agree to remain silent about their experiences and you’ve got a system that conspires to keep harassers’ names securely under wraps.

By some measures, we’re enjoying a welcome stretch where courageous women are upending the corporate cone of silence. Former Fox News anchor Gretchen Carlson made headlines for months last year after she sued Fox News founder Roger Ailes for sexual harassment. Her case was bolstered by recordings she’d made of Ailes’ come-ons and she settled in September for $20 million. Inspired by Carlson’s suit, other women came forward with similar accusations against Ailes, including one who spoke in defiance of her confidentiality pact.

Carlson and now Fowler took big chances going public. Lots of women, though, keep their complaints quiet, fearful they’ll be blacklisted by future employers. Even for harassment victims willing to endure a public legal battle, though, the ubiquity of mandatory arbitration means many ugly stories go untold.

When women assume the risk of going public, it can lead to policy changes. Twenty years ago, a group of female brokers and sales assistants in the Garden City, New York, branch of Smith Barney sued that firm in a sexual harassment and gender discrimination case that became known as the “Boom-Boom Room” suit, named for a party room in the branch’s basement. After initially labeling it an “isolated incident” – sound familiar? – Smith Barney faced a cascade of similar harassment allegations from branches all over the United States.

Smith Barney paid $150 million in arbitrations and settlements in that case amid rousing talk of real change for women on Wall Street.

But the policy changes too often lack real staying power. Once the Boom-Boom Room story was no longer making headlines, the old discriminatory policies began to seep back in. By 2005, another lawsuit against Smith Barney was citing discrimination against female brokers. That one settled for $33 million in 2008. And through it all, some harassers held on to their jobs. A male broker who’d attacked a female colleague in Smith Barney’s Walnut Creek, California, office in 1990 was at the firm for another 24 years, according to regulatory records.

At the same time, scholars at the Institute for Women’s Policy Research in Washington found that in 2015, women in the securities industry were earning 52 cents for every dollar men made. So much for lasting change, or progress toward equality.

Is there any solution given a system that favors the employer and the harasser? Yes – and Fowler is Exhibit A. She said on Twitter Sunday night that her revelations led to such a flood of reactions that it shut down her Twitter and Gmail apps. Many of the supporters who stampeded her accounts with “attagirls” took to social media to say they’d deleted their Uber accounts and suggested others do the same. It took no time for the hashtag #deleteuber – which also swelled in response to Uber’s decision to turn off surge pricing during the Taxi Worker’s alliance participation in an anti-travel ban protest at JFK – to begin trending on Twitter.

In other words, money talks and the Internet helps to amplify its voice. Employers have stripped us of many of our rights. But not even an Ivy League band of big-ticket lawyers can figure out a way to stop us taking our business elsewhere when we’re sickened by a company’s behavior.