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Avoiding Discrimination Claims in Construction

Should construction employers worry less about employee discrimination claims than employers in other industries?

Construction employees come and go, depending on the jobs and may not stay with the company long enough to develop an attachment. With such regular turnover, employees may not associate a termination with race, age, sex, national origin, etc. And with a predominantly male workforce, one would logically assume that there would be less opportunity for sex-related claims.

However, some characteristics of construction workplaces contribute to claims, and when they do occur, they tend to be doozies. Religious discrimination claims occur when contractors refuse to hire or they terminate an employee who will not work on his Sabbath. ADA claims occur because employers demand a “100 percent” or “full” release rather than requiring a release to perform “the essential functions of the job.”

Just as crude behavior may generate claims of harassment by female coworkers, increasingly, male employees argue that they are harassed because of “feminine” behavior, subjected to a hostile workplace or are actually being sexually harassed. The “guys-will-be-guys construction environment may also breed inappropriate or bullying behavior, which today’s workers won’t hesitate to challenge. “Boys will be boys” or “you had to be there” are not great legal defenses. And why should employees tolerate unprofessional behavior? The type of behavior that triggers a claim also may create other workplace problems.

What causes discrimination claims in the construction setting?

  • Employees may suspect a conspiracy or do not want to accept blame for their failings. So if a company is inconsistent in discipline and treatment of employees, they will presume that they were treated differently because of age, sex, etc. Consistency is especially difficult for construction employers because they maintain multiple locations with supervisors who may have limited management and HR training.
  •  Many of these superintendents and foremen came up through the ranks and were not trained about discipline and “leadership.” They were promoted because of their craft ability and other good qualities. These supervisors are now managing their peers and may not have been properly prepared for this transition.
  • Some superintendents and foremen may be uncomfortable engaging in discipline, which leads to more inconsistency and neglected discipline.
  • Don’t hire “walking lawsuits.” Employers hire employees who have histrionic or narcissistic personalities or blame everyone else for their failings, so why be shocked when they sue?

Train new supervisors repeatedly, and help them understand the definitions of “discrimination,” “harassment” and “retaliation;” the need to be consistent; what “looks like” discrimination; and why they must step up to mange those employees who were friends.

Harassment, Bullying and Professionalism

Professionalism should be the hallmark of the construction crafts, and employers should hold their employees to this standard. While there’s no magic prescription, employers must make their employees understand that their language, supposedly good-natured teasing and sexually infused behavior may get them and their employer sued.

Appearances matter almost as much as intent, and employees must understand that their actions may have legal consequences. About one-third of employees, including in construction, say that they have been bullied. Many of those respondents will claim that the bad behavior was because of their race, sex or some other protected status.

The Growing Variety of ADA Claims

ADA claims occur because an employer does not return employees to work after an injury or even hire them in the first place with a history of work-related claims. These discrimination claims are actually easy to prevent:

  • Consider whether an employee or new hire can perform the essential functions of the job with or without reasonable accommodation.
  • Do not require a returning employee to provide a “100 percent release.”
  • Establish accurate job descriptions that accurately set out all of the job’s essential functions.
  • Go through an honest individualized interaction with the employee before concluding that the employee is unable to perform the essential functions of the job with or without reasonable accommodation. Document this process.

Many contractors are revisiting the idea of post-offer job function analysis where they develop a defensible list of essential functions and an equally defensible series of tests and exams that accurately measure ability to perform those essential functions.

Retaliation and Whistleblower Claims

OSHA alone enforces more than 20 retaliation laws varying from Sarbanes Oxley to claims that one was terminated because of internal complaints about safety or environmental concerns. The EEOC takes a hard line against employers who terminate employees because  of discrimination allegations.

The U.S. Department of Labor educates workers about retaliation claims and aggressively protects whistleblowers and workers rights. It is easy for an employee to complain about safety, environmental, discrimination, wage-hour or other issue when they are encouraged to raise concerns. A minor complaint can turn into a discrimination or harassment claim if not recognized and addresses quickly by management.

Train frontline supervision to recognize the circumstances in which an employee may claim retaliation and the due diligence necessary for them to defend their decision. In employee discharge situations, require every discharge decision to be reviewed by human resources or legal person. However, this must be done quickly as justice delayed looks bad.

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