The year 2020 has been a trying time, and the construction executive’s experience is no exception. While employers in the construction industry have always placed a premium on the safety of their employees, employers across the nation have struggled to balance operating efficiently and profitably with protecting employees and those on work sites from the evolving threat of COVID-19.

However, one threat to employee safety is not novel or new and should not be overlooked during these chaotic and tumultuous times: sexual harassment and discrimination in the workplace.

The Problem

Unfortunately, sexual harassment and discrimination in the construction industry is typically a much larger threat to employee safety than many executives are aware. According to the National Association of Women in Construction, as recently as 2018, women only made up 9.9% of the construction industry workforce in the construction industry.1 This lack of women can allow the male perspective to become the dominant perspective and can create an environment where women feel uncomfortable or even unsafe reporting incidents of sexual harassment and discrimination.

Recent surveys of women in the construction industry show sexual harassment and discrimination in the workplace can be common. The results of a survey conducted by Engineering News-Record showed 66% of respondents reported experiencing some form of sexual harassment while working in the construction industry and 60% reported witnessing it.2

The elements an employee must prove in a hostile-work-environment3 sexual harassment complaint or lawsuit include unwelcome, harassing conduct based on sex that is sufficiently severe or pervasive to affect a term, condition or privilege of employment. The recipient of the conduct must subjectively view it as harassing, and a “reasonable” person must also view the conduct as objectively reasonable. If this conduct is established, the business can be liable for the actions of its employees.

The intent of the person engaging in the behavior is irrelevant. Instead, whether the recipient viewed the conduct as harassing and unwanted is the key factor, and it often causes executives to fail to recognize problematic conduct.

The stereotypical form of harassment in the construction industry is a construction worker “cat calling” a woman passing by the job site. While this behavior is clearly inappropriate, oftentimes workplace sexual harassment and discrimination is less overt. Forms of workplace sexual harassment and discrimination include behavior that is often unrecognized in the male-dominated industry, such as sexual or inappropriate jokes, mocking someone because of their gender or sexual orientation, sending sexual emails or messages, and sharing sexual jokes or stories.4 The offender often attempts to defend the conduct by stating they meant no harm and were only joking. This lack of intent is no defense.

The Solution

No one-size-fits-all solution exists, but construction executives can take several measures to ensure they are protecting employees from sexual harassment and discrimination in the workplace.

Companies can defend a hostile-work-environment sexual harassment claim by:

• taking reasonable steps to prevent harassment and correct it if the conduct occurs; and
• if the employee unreasonably failed to take advantage of the preventative or corrective opportunities the employer provided or to otherwise avoid harm.

These actions are commonly referred to as the Faragher-Ellerth defense, or the affirmative defense.5 Even if the employee proves the legal elements of sexual harassment, the employer can avoid liability by establishing this defense.

Construction executives and their legal counsel can establish the “prevention” prong of the affirmative defense through appropriate policies and training. Thorough and unambiguous anti-sexual harassment and discrimination policies are essential. Policies should clearly identify what behavior is inappropriate in the workplace and the consequences for such behavior. Furthermore, they must outline how an employee can report when they or a coworker are the victim of harassment and discrimination and the process that will follow when they make a report of harassment and discrimination. Each employee should receive a copy of the policy, which is often maintained in the employee handbook or intranet, and the company should maintain each employee’s form acknowledging receipt of the policy in their personnel file.

The “correction” prong is established when the company encourages reporting of possible harassment, promptly investigates a complaint and, if a violation of the company’s policies is substantiated, takes reasonable actions to stop the conduct from occurring. Construction executives should foster an environment of compliance by creating multiple avenues of reporting alleged harassment and ensuring all complaints will be taken seriously, without retaliation against the reporter. The company should ensure the investigator is well-trained in conducting unbiased investigations.

Executives should consider retaining an outside investigator with a reputation for neutrality, if the allegations are serious or involve upper-level managers. If the investigation substantiates the complaint, reasonable and appropriate action can vary from verbal or written warnings, suspension, reassignment, demotion and termination of employment.

Training should include relevant and timely instruction on what is and is not appropriate conduct in the workplace, how to recognize and respond when a coworker is experiencing behavior that violates the company’s policies, and how to report that behavior. Each and every employee, from the Chief Executive Officer all the way down the proverbial totem pole, must receive training. Anti-sexual harassment training should be conducted upon hire and then at regular intervals during employment, such as on an annual or bi-annual basis. The company should also maintain records of each employee’s training and a copy of the training materials.

Where the alleged harasser is a co-worker of the plaintiff-employee, the affirmative defense changes somewhat. The employee must prove that the company had notice of the offensive conduct, either through a complaint to a supervisor or if the company knew or should have known of the offensive conduct, but it still failed to take appropriate corrective action.

As a best practice, construction executives should consult with and utilize outside resources, such as an experienced employment attorney or consultant when reviewing sexual harassment and discrimination policies or conducting training. An unbiased, outside opinion is always helpful in identifying and addressing a company’s blind spots.

Construction executives may also consider expanding their candidate pool to hire more women. In most states, public health agencies and government leaders have deemed construction activity to be essential and may continue to operate during the COVID-19 pandemic. Many skilled workers have been laid off and are looking for work. Hiring managers should take advantage, where possible, to attract highly qualified candidates regardless of gender. Executives can help attain this goal by ensuring recruiters and hiring managers locate diverse candidates, focus on whether the candidate can perform the essential functions of the position, and avoid all stereotypes about whether women can “get the job done.”

Preventing sexual harassment and discrimination in the workplace should be a top priority for all companies in the construction industry. Ignoring such behavior will ultimately result in losing top employees and can be extremely expensive, as sexual harassment cases are quite attractive to plaintiffs’ attorneys, and federal and state government regulators often handle these kinds of claims. Further, negative publicity that stems from such lawsuits can severely damage the company’s reputation and even its ability to bid on contracts.