KEY TAKEAWAYS:

• The EEOC has noted workplace harassment is prevalent on many construction jobsites, with some of the most egregious incidents investigated occurring in the construction industry

• Given the EEOC’s pronounced interest in the industry, an uptick in enforcement actions involving construction employers will likely continue

• Reviewing EEOC guidelines and incorporating its best practices will help employers comply with nondiscrimination laws

In a post last year, we discussed how examining the EEOC’s annual reports and Strategic Enforcement Plan could provide guidance as to how the agency intends to allocate its resources and enforcement efforts in the upcoming year.

For the past several years, the EEOC has prioritized six key objectives: (1) eliminating barriers in recruiting and hiring; (2) protecting vulnerable workers and persons in underserved communities from employment discrimination; (3) addressing developing and emerging issues; (4) advancing equal-pay protections for all workers; (5) preserving access to the legal system; and (6) preventing and remedying systemic workplace harassment.

Shortly after, the EEOC spotlighted the construction industry, noting that factors unique to the industry make it a prime target for implementation of the agency’s objectives — like the underrepresentation of women and people of color in construction jobs; the historical and persistent problems of harassment, discrimination, and retaliation on construction worksites, which pose barriers to recruiting and retaining workers from underrepresented groups; and the significant relationship between the construction industry, infrastructure building, and federal funding.

Most recently, the EEOC issued construction industry-specific technical assistance to construction employers to prevent and remediate workplace harassment. In doing so, the EEOC explained that although “workplace harassment is an issue in all sectors and industries, it is prevalent on many construction jobsites, and some of the most egregious incidents of harassment investigated by the EEOC have arisen in the construction industry.” In its “Promising Practices for Preventing Harassment in the Construction Industry” report, the EEOC identified how its five core principles in combatting harassment — (1) committed and engaged leadership; (2) consistent and demonstrated accountability; (3) strong and comprehensive harassment policies; (4) trusted and accessible complaint procedures; and (5) regular, interactive training tailored to the audience and the organization — can be translated into implementable best practices for construction industry employers. Specifically, the EEOC recommended that project owners consider requiring that contract bids include proposals on preventing and addressing workplace harassment and suggested that general contractors serve as coordinators and monitors of sitewide preventative measures. The agency noted that coordinated and cohesive project-wide processes, like an anonymous hotline available for all onsite workers to report complaints of harassment or requiring all subcontractors to notify the general contractor of any complaints they receive as to any worker (both to ensure that complaints are routed to the appropriate employer and to monitor and oversee the complaint’s resolution and prevent retaliation), can combat underreporting issues associated with a decentralized workplace.

With respect to anti-harassment policies and training, the EEOC recommends that policies should be clear and accessible, while taking into account the language access needs of the workers and the nature of the project. The agency specifically noted that anti-harassment policies and complaint reporting procedures should be communicated whenever new workers cycle onto a project, not simply posted or distributed at the project’s outset. If various subcontractors and on-site employers have their own policies for harassment prevention and complaint procedures, the general contractor or project owner should consider reviewing the same to ensure project-wide consistency. The same is true for training and toolbox talks addressing appropriate workplace behavior, supervisor responsibilities for reporting and correcting harassment, and how complaints are to be reported, investigated, and resolved.

The EEOC’s pronounced interest in the construction industry has not only been limited to the issuance of technical assistance manuals and reports on findings from past EEOC cases. Instead, we are seeing and likely will continue to see an uptick in enforcement actions involving construction employers. Just over the past several months, the EEOC has reported reaching resolutions in at least four agency actions involving construction industry employers. We anticipate the EEOC will also follow through with its strategic enforcement objectives by pursuing large-scale projects or higher-profile industry leaders to effectuate systemic investigations and lawsuits and to deter future violations by other, smaller-scale employers.

Reviewing the EEOC’s guidance to construction employers and incorporating the agency’s articulated best practices into their own policies and procedures can create a more comprehensive and robust anti-harassment policy as well as assist the employer in demonstrating its compliance with nondiscrimination laws should an EEOC investigation or enforcement action arise.

If you have any questions about this development or how it impacts your business, please contact:

• Allegra A. Sinclair
• Scott R. Green
• Caroline J. Berdzik
• Or any other member of the Employment and Labor team