The Equal Employment Opportunity Commission’s (“EEOC”) focus on harassment in the workplace – and construction employers specifically – is no secret. The EEOC’s Strategic Enforcement Plan (“SEP”) for 2024-2028 specifically mentions construction as an industry where barriers in recruitment and hiring are of specific concern and includes combatting systemic harassment as one of the EEOC’s enforcement priorities. Among other recent and significant activity on the issue of harassment, the EEOC updated its Enforcement Guidance on harassment in the workplace in April 2024. And just last week, the Commission published “promising practices” specifically directed to construction employers on preventing harassment in the workplace.
The guidance summarizes the EEOC’s rationale for generating this new guidance and highlights the number of charges filed with the EEOC that included allegations of harassment between fiscal years 2019 and 2023 (over one third of all Charges), the egregious incidents of harassment investigated by the EEOC in the construction industry, and the need to frame harassment as a workplace safety issue. It also identifies a number of risk factors particular to the construction industry that may increase the likelihood of harassment, including “workforces that are primarily male, workplaces where there is pressure to conform to traditional stereotypes, and decentralized workplaces.” It notes that these risk factors are often “exacerbated by the presence of multiple employers on a worksite and the cyclical, project-based nature of construction.”
The guidance also reiterates “five core principles” to prevent and address harassment that are found in the EEOC’s 2023 guidance directed to federal agencies and provides detailed explanations and recommendations for each: 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.
The EEOC’s overarching and repeated theme, however, is the “shared responsibility of fostering a harassment-free workplaces” and the need for general contractors to take on “coordination and leadership roles” on harassment issues at job sites. The document is replete with recommendations, including providing site-wide harassment training, monitoring subcontractor and staffing agency adherence to harassment policies, and “review[ing] each [subcontractor/entity’s] policy for content and overall alignment [and consistency]” across the job site.
This guidance has significant implications for construction employers, particularly in light of the National Labor Relation’s Board’s new Joint-Employer Rule under which two entities will be considered joint employers (and jointly liable) if they share or co-determine an employee’s “essential terms and conditions of employment” – defined by the Final Rule to include not only “working conditions related to the safety and health of employees,” but also “work rules and directions governing the manner, means and methods of the performance of duties and the grounds for discipline.” Construction employers must, therefore, walk the fine line of taking steps to prevent workplace harassment while avoiding policies and practices that might lead to a joint employer finding.
In light of the flurry of recent activity at multiple federal administrative agencies under the Biden Administration, and the corresponding uptick in enforcement anticipated by these agencies, construction employers would be well-advised to review their contracts at multi-employer job sites, ensure comprehensive harassment training is completed, and ensure their harassment policies are reviewed for compliance with the EEOC’s “promising practices” guidance. Please contact Christina E. Niro and Frantz Ward’s Labor & Employment Practice Group with questions or for assistance.