The U.S. Equal Employment Opportunity Commission (EEOC) has a new target—the construction industry. During a public hearing earlier this year, the EEOC accused the construction industry of perpetuating a culture of racism and sexual harassment. EEOC Chair Charlotte A. Burrows described the industry as "traditionally white and male dominated," and said that the EEOC is trying to rectify the history of discrimination that has prevented women and people of color from "thriv[ing] in these careers." According to the EEOC, the $1.2 trillion federal Infrastructure Investment and Jobs Act obligates the agency to ensure the infrastructure expenditures are not being used to fuel discrimination and harassment. Since the May hearing, the EEOC has filed numerous lawsuits against construction businesses in states across the country, including Florida, California, Arizona, Wisconsin, Washington, and New York.
Construction industry employers should take steps now—before the EEOC investigates their organization—to minimize their risk of a discrimination or harassment lawsuit. Below are a few considerations for employers, as well as some practical tips for mitigating legal risk.
Prohibitions Against Discrimination and Harassment Generally
Federal laws prohibit employers from discriminating against potential new hires and employees because of a person's race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), military status, disability, or genetic information. It is also illegal to retaliate against a person because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.
Relatedly, harassment is defined as unwelcome conduct that is based on one of the protected characteristics listed above. Harassment becomes unlawful where (1) enduring the offensive conduct becomes a condition of continued employment, or (2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Offensive conduct could include offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.
Examples of Recent EEOC Lawsuits Against Construction Employers
The lawsuits recently filed by the EEOC shed light on the types of workplace behavior that can cause trouble for construction employers. In September, the EEOC filed a lawsuit against a construction employer in California for national origin harassment because supervisors allegedly referred to Latino employees as "wetbacks" and "Home Depoteros" while often telling the employees to "go back to where they came from." The complaint also alleges that one of the defendant's supervisors would sexually harass the Latino workers by referring to them as "whores" and using other derogatory slurs, showing them sexually explicit pictures, and threatening sexual assault. The EEOC further alleged that the employer failed to investigate the harassment after it was reported and, in one case, unlawfully terminated an employee who complained internally about the harassment.
In July, the EEOC settled a lawsuit for alleged sexual harassment on behalf of seven current and former female employees of a Washington construction contractor. The complainants alleged that the employer's founder and owner had sexually harassed female employees since 2010 and had repeatedly stated that female employees did not belong in the industry because of their sex. The complainants also alleged that the employer neglected to investigate prior complaints of harassment, thereby allowing misconduct in the workplace to remain uncorrected. Eventually, one of the female complainants resigned, claiming that she was constructively discharged from employment.
What Should Employers Do to Mitigate the Risk of an EEOC Complaint or Investigation?
There is a common thread among the EEOC's recent lawsuits against construction employers—they often involve allegations that an employer failed to take internal complaints seriously and/or that a supervisor made inappropriate comments in the workplace. These allegations suggest that construction employers may be a bit behind the curve when it comes to establishing internal complaint procedures and training employees about the seriousness of discrimination and harassment. Below are some practical tips construction employers can follow to minimize their legal risk.
Investigate Every Complaint
This is easy to do, yet some employers still drop the ball here. Every employee complaint, no matter how serious (or frivolous) it may seem, should be investigated. When a complaint is ignored, the complainant may think a more official legal action is necessary to ensure that the complaint is heard. They may turn to a lawyer or, in some cases, to the EEOC to advocate on their behalf. Even if the employer is unable to substantiate a complainant's allegations, investigating the complaint thoroughly often goes a long way toward preventing the complaint from becoming something bigger. And in the event a complainant or the EEOC files a lawsuit, the employer's prior investigation of the complaint may provide evidence in support of the employer's defenses.
Conduct Proper Training
Employers are encouraged, and in some states required, to train their employees about discrimination and harassment. The training should:
- Explain what discrimination and harassment is
- Provide examples of what discrimination and harassment look like
- Explain the company policies regarding discrimination and harassment
- Explain the process of filing a complaint (who the complaint should be reported to, explain the investigation process)
- Assure employees that they will not be punished for reporting discrimination or harassment, participating in an investigation of a complaint, or opposing discrimination or harassment
- Assure employees that the employer will protect the confidentiality of individuals who report discrimination or harassment or participate in an investigation, to the greatest possible extent without compromising the scope of the investigation
- Explain the consequences of engaging in unlawful discrimination or harassment and ignoring employee complaints
Establish a Clear Complaint Procedure
Unlike most offices, a construction site does not typically have a human resources office or a related staff member present at all times. Construction employers must still allow employees to lodge internal complaints, however. An employer's complaint policy should clearly identify how and to whom employees may complain, whether to their supervisor or another designated staff member who is present on the construction site most times.
Prevent Retaliatory Behavior
Federal, state, and local laws prohibit an employer from treating job applicants or employees adversely because they complained about alleged discrimination or harassment. Retaliation claims often present challenges for employers. In some ways, retaliation is human nature, especially when a supervisor believes he or she has been falsely accused of discrimination or harassment. In that type of situation, it is understandable that the supervisor may not be too keen on treating the complainant nicely. But human nature or not, that is what needs to happen. An employee who complains in good faith about alleged discrimination or harassment cannot be treated differently from other employees. Otherwise, the employer may be liable for a retaliation claim, separate and independent from the underlying discrimination or harassment claim. The anti-retaliation protections do not mean that a complainant can be insubordinate or violate workplace rules, but if an employer is considering firing or otherwise disciplining an employee who recently complained, the employer should strongly consider consulting with legal counsel before implementing the adverse employment action.
Retaliation is not limited to situations where an employer fires an employee who previously complained. It can arise in other relatively common workplace situations, such as where an employee is demoted, passed over for a promotion, or otherwise suffers an adverse employment action because the employee:
- offered testimony related to an investigation or lawsuit;
- answered questions during an employer's investigation of alleged discrimination or harassment;
- refused to follow an employer's directive that the employee in good faith believed would result in discrimination or harassment;
- intervened in order to prevent other employees from experiencing discrimination or harassment;
- requested an accommodation of a disability or for a religious practice;
- sought salary information related to an allegation of discriminatory pay practices; or
- complained about an alleged unsafe work condition, including the lack of proper safety equipment or a hazardous material in the workplace.
Employers must stay up to date on federal, state, and local workplace harassment and discrimination laws. Many states and localities, like New York State and New York City, have expanded their anti-harassment and discrimination laws beyond the protections provided by federal law. In light of the EEOC's new focus on the construction industry, construction employers should consider the suggestions above in order to minimize their legal risk. For help crafting relevant employment policies and conducting employee training, please contact the authors of this article or any member of Venable's Labor and Employment Group.