by JPeters | July 29, 2024 7:41 pm
The anti-harassment Guidance recently issued by the Equal Employment Opportunity Commission[1] (“EEOC” or “the Commission”) is aimed at construction industry employers and is part of a focused, multi-year effort to address bias and discrimination. Promising Practices for Preventing Harassment[2] in the Construction Industry (“Promising Practices” or “the Guidance”), published in June 2024, is intended to supplement the EEOC’s Strategic Enforcement Plan[3] for FY 2024-2028 and focuses primarily on combatting systemic harassment and eliminating barriers in recruitment and hiring — particularly for underrepresented groups in particular industries.
In articulating its enforcement priorities, the EEOC stated that “the continued underrepresentation of women and workers of color in certain industries and sectors (for example, construction and manufacturing, high tech, STEM, and finance, among others), are also areas of particular concern, especially in industries that benefit from substantial federal investment.”
The passage of the Infrastructure Investment and Jobs Act[4] (2021) and the CHIPS and Science Act[5] (2022) has precipitated a flood of federal dollars into the United States economy. The EEOC’s goal is to help ensure that these initiatives—and the thousands of jobs this legislation creates—don’t perpetuate a pattern of discrimination.
Exploring the Problem
In May of 2022, about six months after the Infrastructure Investment and Jobs Act was passed, the EEOC convened a hearing to explore the culture of racism and sexual harassment in the construction industry. The Commission heard testimony from several individuals, including a black forklift driver who said he was encouraged to wear a noose around his neck for Halloween and a female ironworker who developed urinary tract infections after being pressured “not to go to the bathroom too much” on job sites. Several recent cases litigated by the EEOC against construction firms were also presented, including multiple threats of lynching, sexual assault, and even threats of murder against women and people of color.
“The federal government and our public and private partners have a historic opportunity and a duty to ensure that taxpayer money does not fund harassment or discrimination,” EEOC Chair Charlotte Burrows[6] said in a press briefing following the hearing.
Principles and Practices
Promising Practices follows another report issued by Burrows in 2023, Building for the Future: Advancing Equal Employment[7] in the Construction Industry. This report explores discrimination in the construction industry through an examination of EEOC cases, witness testimony from the May 2022 hearing, and other evidence-based research.
The latest Guidance from the EEOC presents five strategies that have proven effective in preventing and addressing harassment.
• Committed and engaged leadership
• Consistent and demonstrated accountability
• Strong and comprehensive harassment policies
• Trusted and accessible complaint procedures
• Regular, interactive training tailored to the audience and organization
Project owners and general contractors are expected to demonstrate leadership in creating and maintaining a harassment-free workplace. The EEOC strongly recommends that a firm’s anti-harassment policies be included in contractor bids and general contractor and subcontractors’ agreements.
Harassment Risk Factors
The Guidance identifies several construction industry “risk factors” that increase the potential for harassment. Chief among them is the homogenous nature of the workforce. Women comprise just 11 percent of the construction workforce, even though they represent 47 percent of the labor force. African American workers comprised nearly 13 percent of the labor force in 2023 but represented less than 7 percent of the construction workforce.
Other risk factors include decentralized workplaces, where corporate offices are far removed physically or organizationally from the front lines of a project, and workplaces where there is pressure to conform to traditional stereotypes. According to the EEOC, the presence of multiple employers on a construction worksite and the cyclical, project-based nature of the construction industry may exacerbate all these risk factors.
Employers Take Note
Whenever a regulatory agency issues guidance about almost any issue, covered entities can expect enhanced enforcement actions on the horizon. “I believe that most contractors share our desire to get out in front of these problems,” said EEOC Vice Chair Jocelyn Samuels. The ongoing labor shortage is an essential motivator for engagement by construction industry stakeholders. Industry leaders want to make a construction career appealing to a larger applicant pool and retain existing workers.
This Guidance is not a legal mandate, but if the EEOC is ever informed of a harassment claim on a job site, the agency will want to know what policies and procedures the employer has in place to address the issue.
If you have any questions about developing an anti-harassment program, have concerns about an existing program, or need guidance about a discrimination complaint, don’t hesitate to contact Orr & Reno for assistance.
Steven L. Winer[8] and Lynnette V. Legra[9]
Source URL: https://orr-reno.com/eeoc-construction-industry-harassment-prevention/
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