“Promising Practices” Guidelines Released by EEOC to Address Harassment in the Construction Industry
Kathryn Bennett, Law Clerk
Recently the Equal Employment Opportunity Commission (“Commission”) published Promising Practices for Preventing Harassment in the Construction Industry,[1] outlining practices the Commission identifies as effective means for combatting systemic harassment in the construction industry, and placing greater responsibility on employers to ensure that harassment prevention commitments are met.
Introduction of New Guidelines
On June 18, 2024, the Commission distributed Promising Practices for Preventing Harassment in the Construction Industry (“Guidelines”), a brief compendium of practices that may prevent harassment in the field of construction work. The Guidelines are part of the EEOC’s Strategic Enforcement Plan (“SEP”) for 2024-2028, which prioritizes the prevention of systemic harassment in certain industries like the construction industry. As part of the SEP, the Guidelines identify and discuss a number of risk factors that may increase the likelihood of harassment in any given workforce, including within workforces that are predominantly male, workplaces where there is pressure to conform to traditional stereotypes, and decentralized workplaces. Although the Guidelines do not have the force of law, they are recommended practices intended to help employers meet their legal obligations to prevent and remedy workplace harassment.
The Commission’s enumerated promising practices in the Guidelines are organized into five principles that are shown to reduce and prevent workplace 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.
Recommended practices for employers include prioritizing worksite-wide collaboration; requiring that contract bids include a plan to prevent and address workplace harassment; monitoring the actions of subcontractors and staffing agencies; and providing tailored anti-harassment training. A Comprehensive and Clear Policy against harassment may, among other components, include a clear description of who is covered by the policy; a description of prohibited conduct; a description of complaint and reporting processes; and commitments to report harassment, bullying, or other inappropriate conduct “even if [the employer] is not sure if the conduct violates the policy.” By these recommendations, employers are charged with enforcing preventative measures in relation to a wider variety of potentially non-violative conduct than is explicitly addressed in previous guides by the EEOC.
Contractor-Specific Concerns
In the Guidelines, the Commission notes that workplace harassment tends to increase with the presence of multiple employers on a worksite. Perhaps for this reason, the Guidelines direct contractors to ensure that subcontractors comply with harassment prevention practices, stating: “[w]hen subcontractors lack the experience or resources to resolve an issue, take inadequate steps to address prevent harassment or fail to take reasonable corrective action in response to harassment, consider facilitating and assisting subcontractors in finding solutions.” Because the Guidelines encourage contractors to take action where they observe subcontractors falling short of their harassment prevention commitments, some contractors may be concerned about incurring joint liability for the conduct of subcontractors’ employees should they intervene. However, it is important to note that EEOC guidance is not legally binding, and may only be relied on to the extent it has the power to persuade the Court. In this, the way liability attaches to employers in the industry will still be decided based on who controlled hiring and firing decisions; who had the authority to assign work and set the conditions of employment; the involvement of each party in the day-to-day supervision of work; and/or who controlled employee records.
Employer Considerations
Because preventing systemic harassment is one of the stated priorities of the SEP,[2] these Guidelines may be representative of guidelines the Commission may release in the future over other industries that have increased likelihoods of harassment in the workplace. So, while the scope of this release is relatively narrow in that it is specifically addressed at the construction industry, the Commission may disseminate similar practice guides for other industries in support of the SEP in the future. For now, construction employers should revisit the harassment prevention policies currently in place and consider adopting the Guidelines’ recommended practices to be able to easily demonstrate a comprehensive anti-harassment policy in their workplace.
[1] Available at https://www.eeoc.gov/promising-practices-preventing-harassment-construction-industry.
[2] EEOC, Strategic Enforcement Plan Fiscal Years 2024 – 2028, page 12.