Hunton Employment & Labor Perspectives

On June 18, 2024, the Equal Employment Opportunity Commission (“EEOC”) released Promising Practices for Preventing Harassment in the Construction Industry (the “Guidance”), which highlights the EEOC’s recommended anti-harassment guidelines for the construction industry.  The initiative is part of the EEOC’s broader effort to address bias in the construction sector amidst significant federal investment through the Infrastructure Investment and Jobs Act and the CHIPS and Science Act.

The Guidance is designed to provide insight into the anti-harassment activities the EEOC believes employers should undertake to comply with nondiscrimination laws.  Geared toward project owners, general contractors and subcontractors, the Guidance outlines five strategies intended to support the EEOC’s broader Strategic Enforcement Plan (“SEP”) for fiscal years 2024-2028, which, in part, focuses on combatting harassment in the construction industry.

The Guidance identifies five core practices intended to help prevent and address harassment in the industry:

• 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 the organization.

Committed Leadership and Demonstrated Accountability

The Guidance highlights the importance of committed leadership as necessary to mitigating the risk of workplace harassment, deeming it the “cornerstone” of a successful anti-harassment strategy.  The Guidance includes that project owners should require written plans to prevent and address harassment in contract bids.  In this manner, all employers at a worksite would collaborate to prevent and address harassment, sweeping in employees whose employers otherwise are not covered by federal anti-discrimination laws.  The Guidance also recommends that project owners and general contractors mandate that contract bids include a comprehensive anti-harassment plan.  Further, the Guidance advises general contractors help prevent worksite harassment via monitoring subcontractors and the workforce for anti-harassment compliance, regularly evaluating applicable policies, and actively seeking employee feedback on the effectiveness of the anti-harassment measures.

Comprehensive Harassment Policies

The Guidance advises that harassment policies should be documented in writing, clearly communicated, prominently posted in easy-to-find locations, and regularly updated.  The Guidance identifies nine elements that should be part of a comprehensive antiharassment policy in the construction industry, which are:

• the identification of who is governed by the policy;
• a blanket statement on the prohibition of harassment; 
• a clear depiction of prohibited conduct;
• a description of the complaint reporting process;
• encouragement for workers to report harassment/inappropriate conduct;
• a commitment to prompt, impartial, and thorough investigations;
• reinforce employees’ need to participate in investigations;
• assurances that the company will immediately take reasonable and proportionate corrective action; and
• a prohibition of retaliation.

Accessible and Trusted Complaint Procedures

The Guidance includes that anti-harassment policies and complaint procedures be written in a clear and easy to understand language, and posted in consistent, easy-to-find places.  In the event that multiple employers onsite have their own anti-harassment policies, the project owner or general contractor should review the policies for consistency.  The Guidance further suggests that general contractors implement a supplemental reporting system for all work-site workers, regardless of their on-site employer.  General contractors should train workers on how to use the existing complaint channels and ensure every on-site employer reports any complaints to the general contractor.  Additionally, harassment complaint systems should be accessible in all applicable languages and offer numerous practices to submit complaints.  The Guidance also suggests periodic testing of these systems to ensure they are functioning effectively.

Regular and Interactive Training

The Guidance urges industry leaders to conduct training for all workers on applicable rules, policies, and procedures.  Trainings should plainly outline what constitutes prohibited harassment and provide relevant examples, and inform employees on reporting procedures.  Additionally, managers and supervisors should receive additional training on their legal obligations to prevent, address, and correct harassment.  

Though the Guidance isn’t legally binding, adherence to its recommendations can help employers covered by federal anti-discrimination laws mitigate the risk of liability, as EEOC investigators will evaluate applicable employer’s anti-harassment policies and practices against the Guidance.  However, employers will want to do so cautiously so as to maintain a distinction between encouraging other employer’s best practices at a multi-employer job site without creating broader liability for itself based upon joint employer or other legal theories.