Last month, the federal Equal Employment Opportunity Commission (EEOC), which enforces federal anti-discrimination and harassment laws, released a guide to help construction employers address harassment on job sites.
The federal agency is paying close attention to a pervasive problem
EEOC guides such as this one serve two purposes. They provide information about anti-harassment best practices for both employers and employees, but they also put the industry on notice that the EEOC expects a higher standard moving forward. While the guide itself does not have the force law, it shows what the agency is looking for employers to do to address the ongoing problem of harassment on job sites, and that has implications beyond the construction industry.
What’s included in the EEOC guidance for construction companies
Highlights of the EEOC’s guidance include:
- Leadership: project owners, general contractors, crew leads, union stewards, and other leaders on construction sites need to clearly explain that harassment will not be tolerated on-site.
- Comprehensive policies: contractors and subcontractors need clear, comprehensive anti-harassment policies in place that describe who is covered, what conduct is prohibited, and what workers should do if they experience or witness harassment.
- Robust harassment complaint system: leaders must be responsive to harassment complaints submitted through both formal and informal channels, in the languages commonly used by construction workers.
- Effective harassment training: having rules and policies is of limited value if managers and employees don’t know about those policies. Training programs should be tailored to the work environment and reinforced by site owners and team leads.
- Stakeholder buy-in: the EEOC recommends that project owners and sponsors, including state and local governments, should consider requiring anti-harassment measures in contract bids.
What is unlawful harassment on construction sites?
Not all crude or even hostile behavior on a job site is illegal harassment. To be unlawful, harassment must meet two criteria. First, it must be severe and pervasive, to the point where a reasonable person would consider it intimidating, hostile, or abusive, and enduring the offensive conduct must become a condition of continued employment. Second, the harassment must be based on a legally protected characteristic, such as race, gender, religion, national origin, age (if over 40), disability, or genetic information.
Unfortunately, the construction industry has developed a reputation for some particularly egregious incidents of harassment. In 2020, following the killing of George Floyd, dozens of nooses appeared on construction sites across the country, according to Construction Dive. Other examples of illegal harassment include sustained and severe taunting, threats, and vandalizing toolboxes or personal property.
It’s also illegal for construction employers to retaliate against workers for raising complaints of discrimination or harassment. Examples of retaliation include cutting hours or transferring the worker to a less desirable site.
What to do if you’ve been harassed on a construction site
You need to take a few steps to protect your rights as a victim of harassment on a construction site. First, document everything. Write down what happened, when, where, and who, if anyone, witnessed it. Then, follow your employer’s procedure for reporting harassment if they have one. If not, tell your crew leader, foreman, or someone else in charge on site.
It’s also important to get experienced legal advice as soon as possible if you’re dealing with unlawful harassment. Talking to a lawyer isn’t a commitment to file a lawsuit or a formal complaint; it’s an opportunity to tell your story and get answers about what you can do next. Give us a call or contact us online for a free case evaluation with Nilges Draher LLC. We can help.