Construction Firm Settles Racial Harassment and Retaliation Case

​The Whiting-Turner Contracting Co., a construction company based in Baltimore, will pay $1.2 million to settle a lawsuit over racial harassment and retaliation claims at a worksite in Tennessee.

The U.S. Equal Employment Opportunity Commission (EEOC) brought a class-action lawsuit in September 2021, claiming Whiting-Turner violated Title VII of the Civil Rights Act of 1964 by:

• Segregating Black employees by assigning them to all-Black crews that worked under white supervisors.
• Requiring Black employees to perform more physically demanding and less-desirable work assignments than those assigned to white employees.
• Retaliating against two Black workers for reporting discrimination during a team meeting.
• Allowing a racially hostile work environment to persist.
• Not allowing qualified Black employees to work in supervisory positions.
• Failing to provide employees with an anti-discrimination policy and instruct them on how to register discrimination complaints.
  

The EEOC said white crew leaders used racially derogatory language when speaking to Black employees, and the worksite's portable toilets were covered in racist graffiti and epithets. A noose was allegedly displayed in the workplace on Martin Luther King Jr.'s birthday. The EEOC said the company failed to investigate discrimination complaints and fired two Black workers after they raised concerns about discrimination.

Tim Regan, CEO of Whiting-Turner, said, "We are pleased to resolve this matter with the EEOC confirming no admission of liability or wrongdoing by Whiting-Turner. Whiting-Turner has denied liability or wrongdoing from the beginning of this case, and we are proud of our efforts to combat discrimination and to promote diversity and inclusion within the company and on our jobsites. While there was no credible evidence that any Whiting-Turner employees were involved in the actions alleged, a monetary settlement was reached in order to avoid the cost and expense of a protracted trial."

The settlement requires Whiting-Turner to incorporate a strict prohibition against racial graffiti, racial jokes, racial slurs and hate symbols into its anti-harassment policy; assign an equal employment opportunity liaison to each of its construction sites; and conduct semiannual training on Title VII.

"The allegations in the Whiting-Turner matter are a prime example of the urgent need for the EEOC's ongoing efforts to eliminate racism in the construction industry," said EEOC Chair Charlotte Burrows. "The shocking findings of the EEOC's investigation in this case are not an isolated occurrence in the industry."

EEOC trial attorney Roslyn Griffin Pack said, "Construction companies must take immediate steps to combat race discrimination on worksites. That action includes making sure its managers and supervisors are trained on Title VII and take prompt action at the first sign of trouble."

In recent years, the EEOC has "been focusing more on impact litigation. They have limited resources. They want to be bringing cases that they think will bring the most bang for the buck and have the most deterrent effect on employers," said Eric Bachman, an attorney with Bachman Law in Bethesda, Md. "Employers will hopefully take a hard look at their own internal procedures to make sure they're compliant with the law."

Severe and Pervasive Harassment

Under federal law, harassment is unwelcome conduct based on race, color, sex, religion, age or disability. Harassment is unlawful if it's severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile or abusive, according to the EEOC. Petty slights, annoyances and isolated incidents don't constitute illegal harassment.

It's important for HR professionals to explain how HR can help management avoid liability for harassment and retaliation, said Kate Mueting, an attorney with Sanford Heisler Sharp in Washington, D.C.

After receiving a complaint about harassment, HR should investigate right away and keep the employee updated on the status of the investigation, even if it's not possible to disclose everything, Bachman said.

A prompt investigation and disciplinary action, where appropriate, sends everyone the message that the company will not tolerate harassment or retaliation. By doing nothing, some companies give employees the impression that leaders "will look the other way" when harassment or retaliation occurs, Mueting said.

Violators "need to be held accountable. They need to be disciplined. Without that, you're just emboldening people to continue that discrimination. At the same time, you're discouraging people from complaining about it," Bachman said.