By: Michelle De Oliveira, Esq. and Brittany Darcy, Esq.

On June 19, 2024, the EEOC issued harassment guidance, Promising Practices for Preventing Harassment in the Construction Industry (“Construction Guidance”), specifically addressed to the construction industry. The EEOC announced that its newly issued Construction Guidance supports its Strategic Enforcement Plan for Fiscal Years 2024-2028, “which, in part, focuses on combatting systemic harassment, and eliminating barriers in recruitment and hiring, including for groups that are underrepresented in industries like construction.”[1]  The Construction Guidance followed closely on the heels of the EEOC’s April 29, 2024 newly issued Enforcement Guidance on Harassment in the Workplace.

Employers are encouraged to pay close attention to the EEOC’s priorities, and each is discussed further below.

I. Promising Practices For Preventing Harassment In The Construction Industry.

The Construction Guidance offers strategies and insight to prevent and address harassment “holistically.”  Recommended strategies include, for example:

  • Awarding authorities considering imposing a requirement that contract bids include a plan to address workplace harassment.
  • Maintaining a comprehensive harassment policy and a complaint system; and conducting training to effectuate such policies. Consistent with that recommendation, general contractors should include corresponding provisions in subcontractor agreements to ensure ongoing compliance.
  • General contractors coordinating harassment prevention policies. If multiple entities on a jobsite have their own policies, then the various entities on the jobsite should consider designating a person or relevant committee to review all policies for consistency.
  • Identifying individuals with managerial or supervisory responsibility and ensuring that they have specific training with respect to their legal obligations, including relating to harassment prevention.
  • Designating certain employees, for example team leaders, to focus on worker well-being.

Given the EEOC’s suggestions, contractors and subcontractors should consider how to proactively collaborate to tackle harassment-related concerns, while being mindful of the EEOC’s focus on the construction industry.

II. Enforcement Guidance On Harassment In The Workplace.

Merely two months prior to the construction industry-specific harassment guidance, on April 29, 2024, the EEOC had issued Enforcement Guidance on Harassment in the Workplace (“Guidance”).

The Guidance is a helpful tool and resource for employers to have handy.  Indeed, it discusses how harassment because of an individual’s protected class (race, color, religion, sex, national origin, age, disability, genetic information, or any other protected class) is defined, and how employer liability for such harassment is examined and established. While the Guidance itself does not have the force and effect of law, it serves as a helpful reminder as to the EEOC’s priority and employers should consider the ways in which the Guidance may affect workplace policies, harassment complaint processes, and trainings.

Most employers understand that harassment because of someone’s sex is prohibited. The EEOC Guidance includes, by way of example, discussion of a supervisor who uses demeaning sex-based stereotypes and epithets and disparages women’s participation in the construction industry, stating that road construction is “a man’s job.” This cautionary tale of prohibited harassment is one of many that will not come as earth-shattering guidance. There is, however, an acknowledged broader class of sex-based harassment claims. In 2020, the Supreme Court held that discrimination on the basis of sexual orientation and gender identity is discrimination “because of sex.” To that end, repeated and intentional misgendering – i.e., the use of pronouns inconsistent with an employee’s gender identity – may support a harassment claim.

Harassment is actionable if it is based on a protected characteristic and affects a “term, condition, or privilege” of employment. That means that the harassment either: (a) results in explicit changes to the terms and conditions of employment, such as a change to compensation; or (b) creates a “hostile work environment” that constructively changes the terms and conditions of employment.  To establish a hostile work environment claim, the underlying conduct must be both subjectively and objectively hostile and may encompass a broad range of conduct.

Employers should not underestimate the reality that conduct outside of the workplace may contribute to an actionable harassment claim. For example, the EEOC’s Guidance includes an example of inappropriate behavior directed at an employee during a holiday party off-site, which suffices to support a workplace harassment claim.

Social media platforms extend the considerations about conduct occurring outside of the workplace even further. Social media posts may contribute to harassment and hostile work environment claims even if the post occurs outside of the workplace. Standing alone, a social media post may not be enough to serve as a basis for a harassment claim if it does not target the employer or other employees—but social media posts viewed by employees outside of the workplace may have consequences in the workplace. A notable example of this was seen in Knowlton v. Dep’t of Transp.,[2] in which the Office of Federal Operations reversed and remanded the EEOC’s dismissal of a harassment claim that included allegations that an employee posted negative race-related comments on Facebook about the complainant.

III. Key Takeaways.

Based on the above, the time is ripe for employers to review their workplace policies, including their discrimination and harassment policies—and ensure that employees are adequately trained on how to identify and address potential concerns.  Understanding the different employer liability standards is equally important to ensure that management teams understand why their actions matter.

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This newsletter article is for informational purposes only and may be considered advertising. It does not constitute the rendering of legal, tax or professional advice or services. You should seek specific detailed legal advice prior to taking any action.

[1] https://www.eeoc.gov/newsroom/eeoc-releases-promising-practices-preventing-harassment-construction-industry#:~:text=The%20document%20supports%20the%20EEOC’s,underrepresented%20in%20industries%20like%20construction.

[2] EEOC Appeal No. 0120121642, 2012 WL 2356829, at *1-3 (June 15, 2012).