Preventing Harassment in the Construction Industry

ABSTRACT: Harassment in the construction industry is a key focus of the EEOC’s strategic enforcement plan. Its “Promising Practices” provide employers guidance to preventing and responding to harassment.

The EEOC has recently published its Promising Practices For Preventing Harassment In The Construction Industry to aid employers in addressing and preventing harassment based on race, sex, national origin, or other protected characteristics. Rather than having the force of law, rule, or regulation, the Promising Practices reflects the EEOC’s experience with practices it has found to be effective in preventing harassment.  The Promising Practices do not constitute a “safe harbor” from liability for employers who put them into practice, but implementing and applying these practices can help to perfect available affirmative defenses, curry favor with judges and juries deciding harassment cases, and most importantly, potentially prevent harassment in the first place.

The practices identify five core principles the EEOC finds effectively address harassment:

• Committed and engaged leadership;
• Consistent and demonstrated accountability;
• Strong and comprehensive harassment policies;
• Trusted and accessible complaint procedures; and
• Regular, interactive training tailed to the audience and the organization.

Application of these principles has many benefits.  Studies show workplaces replete with harassment have higher levels of turnover, higher rates of workplace injuries, lost productivity, and greater difficulty attracting high quality talent.  Juries are unlikely to punish employers who are trying to prevent and combat harassment, even if their efforts fall short.  Conversely, unengaged or passive leadership and policies that go unenforced are likely to draw their ire. 

Importantly, these principles closely track the Faragher-Ellerth affirmative defense under Title VII, which is also applied in many states.  An employer is completely relieved of liability for supervisor harassment that does not end in tangible employment action if it can show that: (1) the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior and (2) that the employee unreasonably failed to take advantage of preventive or corrective opportunities.  Engaged leadership that holds harassers accountable under its policies, provides robust and anonymous reporting procedures, and conducts regular training can feel more confident in resisting potential legal claims.  The Promising Practices, if adopted, very likely satisfy the “reasonable care” prong of Faragher-Ellerth.  An employee probably also acts unreasonably if effective reporting channels exist but he or she fails to utilize them.

Risk Factors

In discrimination and harassment cases, courts frequently look at the totality of the workplace and workforce demographics for evidence that raises an inference of discrimination or unfair treatment.  Certain factors not only raise the risk that harassment will occur, but also may be circumstantial evidence of discriminatory intent, lack of reasonable care in preventing harassment, or failure to adequately respond to complaints of harassment.

The risk factors identified by the EEOC include: (1) a homogenous workforce; (2) workplaces where employees are pressured to conform to stereotypes; (3) decentralized workplace; (4) multiple employers present; and (5) project-based workplaces.

General Contractors Should Lead the Way

Promising Practices identifies general contractors as being uniquely positioned to coordinate preventative measures on job sites with multiple employers.  If subcontractors do not have the resources to implement and enforce anti-harassment policies, general contractors may be able to step in.  In recent years, both the EEOC and NLRB have sought to greatly expand their “joint employer” rules, so general contractors have additional incentives to prevent and correct harassment.  The EEOC suggests that a “no wrong door” system, whereby all subcontractors are required to re-route harassment complaints to the appropriate channels, may be appropriate where many subs are present on-site. 

Remedying Complaints

In most instances, the subject of the harassment simply wants the harassment to stop.  Few employees are looking to set up a discrimination lawsuit, but every complaint and investigation should be treated with the requisite seriousness as if a lawsuit may one day result.  That includes adequate record-keeping, interviews with all parties and witnesses, a thoughtful response, and meaningful actions that are likely to end the harassment. 

Transferring one of the involved employees may seem tempting.  If the subject is separated from the harasser, then problem solved, right? Not necessarily.  While courts have previously held that separating a harasser from the subject can be an effective response, that may no longer be the case.  In an important development from this past Supreme Court term, the Court clarified that a claimant does not need to show significant harm, only some harm, to state a discrimination or retaliation claim.  As discussed in a previous post on this blog, a transfer without any change in pay or benefits can suffice to state a claim under Title VII.  In the construction industry, there are frequently differences in prestige among different assignments, even within the same trade or same project.  In an industry in which it is difficult to distinguish oneself, particularly for women, seemingly minor changes to the terms and conditions of employment can have large consequences.  A re-assignment, even with the same pay, hours, and benefits, constitutes an adverse employment action if it is viewed as a less favorable path for advancement, training opportunities, or prestige.

The Role of Unions

Collective bargaining agreements regularly include terms such as rates of pay, hours, and on construction projects, jurisdictions for particular bargaining units and union members.  An oft-overlooked provision present in most CBAs is a nondiscrimination provision, which typically prohibits discrimination in application of the terms and conditions of employment.  This has been interpreted to include harassment and discrimination on the basis of a protected characteristic and is frequently the source of a claim for breach of the union’s duty of fair representation (which exists whether there is a non-discrimination clause or not). 

Although not usually the designated channel for reporting harassment, union stewards are frequently employees’ first contact when problems arise.  Union stewards can assist employees in identifying reporting channels and encouraging reporting of inappropriate conduct. 

What deference will Courts afford to the Promising Practices?