Quick Hits

  • The EEOC recently released guidance for the construction industry to prevent and address workplace harassment.
  • The guidance is intended to help employers meet their legal obligations and remedy harassment if it takes place.
  • The guidance builds on its new harassment guidance issued in April 2024 for all industries.
  • The guidance aligns with the EEOC’s strategic enforcement priorities, which include a focus on industries where women and certain racial groups are underrepresented.

On the heels of the EEOC’s April 2024 release of its “Enforcement Guidance on Harassment in the Workplace,” the EEOC released detailed guidance on preventing harassment in the construction industry on June 18, 2024.

More than one-third of the charges the EEOC received between fiscal year (FY) 2019 and FY 2023 “included an allegation of harassment based on one or more of the characteristics protected under federal employment law,” such as race, color, sex, religion, or disability, the agency said in its report, “Promising Practices for Preventing Harassment in the Construction Industry.”

For the construction industry, the EEOC listed these five principles as keys to preventing harassment:

  1. strong and comprehensive anti-harassment policies;
  2. leaders who are committed to maintaining a culture in which harassment is not acceptable;
  3. consistent and demonstrated accountability;
  4. trusted and accessible complaint procedures; and
  5. regular, interactive anti-harassment training tailored to the audience and the organization.

The EEOC recommended that project owners “requir[e] that contract bids include a plan to prevent and address workplace harassment,” and that “general contractors can include corresponding provisions in any agreements with subcontractors and staffing agencies to ensure ongoing compliance.” Construction employers may wish to review their contracts and agreements for such provisions.

The agency also recommended that general contractors do the following to prevent harassment:

  • provide an anonymous hotline to receive complaints from all onsite workers;
  • confirm that every subcontractor has established its own complaint channel;
  • conduct anonymous worker surveys on a regular basis to determine whether harassment is occurring;
  • provide an anti-harassment policy written “in all languages commonly used by workers at the site,” posted in easy-to-see places; and
  • require each onsite employer to notify the general contractor about any harassment complaints they receive.

In the guidance, the EEOC identified nine elements of what constitutes a comprehensive antiharassment policy in the construction industry. The guidance aligns with the EEOC’s “Strategic Enforcement Plan for Fiscal Years 2024 – 2028,” which includes an emphasis on industries where women and certain racial groups are underrepresented and an emphasis on systemic harassment.

The agency identified risk factors that increase the likelihood of harassment in a construction workplace, such as having a primarily male workforce, a decentralized workplace, and pressure to conform to traditional stereotypes. “These factors may be exacerbated by the presence of multiple employers on a worksite, and the cyclical, project-based nature of construction,” the EEOC noted.

According to the EEOC, women make up 11 percent of all workers in the construction industry and 4 percent of workers in the trades.

The consequences of harassment can be potentially riskier in the construction industry compared to other industries. “Because construction work is potentially hazardous and often performed in teams, harassment on construction sites can endanger workers’ physical safety and increase the chance of injury,” the EEOC stated.

However, safety is not the only concern. “Harassment imposes immediate costs on those who are subject to it, and harassment based on race, sex, and national origin is also a significant barrier to recruiting and retaining women and people of color in construction,” the EEOC stated.

Next Steps

Employers in the construction industry may want to review both the EEOC’s general guidance and construction-specific guidance and take steps to ensure that they are complying with local, state, and federal anti-harassment laws. Employers may want to review their workplace policies and practices, including their agreements and contracts with other entities while keeping a keen eye on joint and co-employment risks.

Employers may want to note differing state or local laws and state or local agency guidance that differ from Title VII of the Civil Rights Act of 1964 and other federal laws enforced by the EEOC.

Ogletree Deakins will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion and Employment Law blogs as additional information becomes available.

Nonnie L. Shivers is a shareholder in the Phoenix office of Ogletree Deakins.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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