Preventing Harassment in the Construction Industry

The Equal Employment Opportunity Commission (EEOC) issued extensive guidance to curb harassment in the construction industry. The EEOC will use this guidance to evaluate contractor harassment policies when investigating employee discrimination charges.

The EEOC Task Force issuing the report identified five core principles they believe are effective in preventing and addressing harassment:

• Committed and engaged leadership
• Consistent and demonstrated accountability
• Strong and comprehensive harassment policies
• Trusted and accessible complaint procedures and
• Regular, interactive training tailored to the audience and organization.

Leadership and Accountability

The EEOC guidance provides that the cornerstone of a successful harassment prevention strategy is leadership’s consistent and demonstrated commitment to create and maintain a culture in which harassment is not acceptable. Per the guidance, worksite leaders from the project owner to crew leads to union stewards should clearly and frequently message and demonstrate that harassment is prohibited. Approaches should include anti-harassment measures in contract bids, general contractors (GCs) in a coordinating role, and evaluating policies while seeing feedback.

Including Anti-Harassment Measures in Contract Bids

Any project owner or sponsor, including a state or local government, should consider requiring that contract bids include a plan to prevent and address workplace harassment. Similarly, GCs can include corresponding provisions in any agreements with subcontractors and staffing agencies to ensure ongoing compliance. These bid requirements (verified at the time of award) and corresponding contract provisions could include that the bidder maintain:

• Effective and comprehensive harassment policies that account for anticipated potential accessibility barriers, such as limited literacy skills or language access needs;
• Accessible complaint systems with multiple reporting channels that are clearly identified and provide contact information;
• Regular and effective training for all workers about the harassment policy and complaint system, including that retaliation for reporting or reasonably opposing harassment is against the law, as well as training for designated individuals about how to prevent, recognize, and respond to objectionable conduct without retaliation;
• A discipline policy that is prompt, consistent, and proportionate to the severity of the harassment or related misconduct, such as retaliation.

General Contractors Serving in a Coordinating Role

In addition to ensuring compliance with its own internal policies, the EEOC guidance provides that GCs are typically well positioned to coordinate harassment prevention across a worksite and serve as a backstop for resolving difficult issues. The EEOC recommends that general contractors:

• Consider providing or coordinating sitewide preventive measures, such as training.
• Periodically verify that their subcontractors are following through with their harassment-prevention commitments and complying with obligations set out in their contracts.

Evaluating Policies and Seeking Feedback

When building workforce accountability, the EEOC encourages general contractors to seek feedback from workers about the worksite’s collective anti-harassment efforts. The GC or relevant committee should consider:

• Conducting anonymous worker surveys regularly to assess whether harassment may be occurring. Worksite leaders may wish to explore ways to seek quick, simple feedback, including through mobile phones, to serve as an early indicator of any emerging concerns, rather than relying on lengthy surveys designed to be taken on a computer.
• Partnering with researchers to evaluate the worksite’s harassment prevention strategies.

Comprehensive and Clear Harassment Policies

Per the new guidance, a comprehensive, clear policy against harassment sets forth the behaviors that are unacceptable in the workplace, the procedures workers are encouraged to follow when reporting harassment, and the steps that the employer will follow when responding to complaints or reports of harassment.

The EEOC recommends including the following elements in a comprehensive anti-harassment policy:

• A clear description of who is covered by the policy, such that people covered by the policy can understand that it prohibits certain conduct by and toward coworkers, apprentices, applicants, independent contractors, temporary workers, worksite inspectors, onsite vendors, or any other people likely to be on the worksite.
• A clear description of prohibited conduct, with examples tailored to the work environment, such as taunting tradeswomen when they are performing a difficult or dangerous task or vandalizing the toolboxes or personal protective equipment of Black workers. Certain conduct may be more likely to constitute unlawful harassment when it occurs in high-risk environments like construction.
• An unequivocal statement that harassment is prohibited. Anti-harassment policies do not have to be limited to characteristics explicitly covered by law, and employers should consider extending their policies to cover other factors that may make a worker more vulnerable to harassment in a construction environment (e.g., apprenticeship status, undocumented status).
• A description of complaint and reporting processes and where to find more information about them.
• A statement that workers are encouraged to report harassment, bullying, or other inappropriate conduct even if they are not sure if the conduct violates the policy. Early notification enables the employer to promptly address problematic conduct before it may result in a legal violation, and limits potential harm to workers.
• A commitment that the employer will provide a prompt, impartial, and thorough investigation, and that the employer will keep the identity of individuals who report harassment, alleged targets, witnesses, and alleged harassers confidential to the extent possible and permitted by law, to allow the employer to conduct an effective investigation.
• A statement that workers are encouraged to respond to questions or to otherwise participate in investigations of alleged harassment.
• An assurance that the employer will take immediate, reasonable, and proportionate corrective action if it determines that harassment has occurred. The policy should outline the range of possible consequences for engaging in prohibited conduct and not rely on the term “zero-tolerance,” which may have the unintended consequence of deterring reporting.¹⁴
• An unequivocal statement that retaliation is prohibited, and that individuals who report harassing conduct, participate in investigations, or take any other actions protected under federal employment discrimination laws will not be penalized or retaliated against for doing so.

Effective and Accessible Harassment Complaint System

In the construction context, EEOC guidance advises the complexity of the multiple employer/entity environment introduces challenges to traditional reporting structures, but also presents opportunities to turn multiple channels into a “no wrong door” environment. While each onsite employer should have its own complaint system, the GC may also wish to coordinate supplemental channels that are available to workers regardless of their employer of record.

An effective harassment complaint system welcomes questions, concerns, and complaints; encourages employees to report potentially problematic conduct early; treats alleged targets of harassment, complainants, witnesses, alleged harassers, and others with respect; operates promptly, thoroughly, and impartially; and imposes appropriate consequences for harassment or related misconduct, such as retaliation.

The EEOC recommends that a harassment complaint system:

• Be fully resourced and accessible in languages commonly used by workers, enabling the employer to respond promptly, thoroughly, and effectively to complaints.
• Include multiple ways to complain, both formally and informally. Reporting channels should be clearly identified, and the policy should include contact information for those who can receive complaints. Workers may be reluctant to file a formal complaint reporting harassment. While a formal complaint leading to an investigation may often be the best route, sometimes a target of harassment primarily wants the harassment to stop and prefers an alternative option.
• Have more than one channel. Providing multiple channels for workers to complain about harassment helps to ensure that a complainant who is harassed by their immediate supervisor can lodge a complaint with a different employer representative, which reduces the risk of retaliation.
• Describe the information the entity may request from complainants, including: the identity of the alleged harasser(s), alleged target(s), and any witnesses; the date(s) of the alleged harassment; the location(s) of the alleged harassment; and a description of the alleged harassment.
• Include processes to determine whether alleged targets of harassment, individuals who report harassment, witnesses, or other relevant individuals are subjected to retaliation, and impose sanctions on those responsible.
• Ensure that the individuals who are responsible for receiving complaints are welltrained and are granted the requisite authority to meaningfully investigate complaints. Clarify that once a complaint is made and an investigation underway, relevant supervisors should remain vigilant and use the tools at their disposal to mitigate ongoing harassment and retaliation in a way that doesn’t penalize the person who filed a complaint. A complaint filing should not suggest to supervisors that they take no action of any kind.

Effective Harassment Training

Regular, interactive, and comprehensive training of all workers on a construction site can help ensure that the workforce understands applicable rules, policies, procedures, and expectations, as well as the consequences of misconduct. As with all aspects of harassment prevention, the training should be provided in a clear, easy to understand style in all languages commonly used by onsite workers.