EEOC: Monitor Subcontractors’ Harassment Prevention

Employers in the construction industry that are general contractors should periodically verify that their subcontractors are following through with their harassment prevention commitments, according to the U.S. Equal Employment Opportunity Commission (EEOC) in recent guidance. It was released following guidance issued by the commission in April on examples of harassment the agency deems unlawful—including harassment based on race, sex, religion, and other factors. The recent guidance included elements HR should review to see what should be in an anti-harassment policy.

Core Practices to Prevent Harassment

The June 18 guidance, Promising Practices for Preventing Harassment in the Construction Industry, identified core practices to help prevent and address harassment in the construction industry.

These practices are:

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

“The unique structure of construction jobs leaves workers especially vulnerable to workplace harassment,” said EEOC Vice Chair Jocelyn Samuels in a statement. “The strategies outlined in our new Promising Practices document will help all construction industry stakeholders identify and take concrete steps to effectively prevent harassment, address if it occurs and create a worksite culture that promotes equal opportunity for all workers.”

Risk factors in the industry addressed by the guidance include workforces that are primarily male, workplaces where there is pressure to conform to stereotypes, and workplaces that are decentralized. These factors may be exacerbated by the presence of multiple employers on a worksite and the cyclical, project-based nature of construction, the EEOC noted.

Examples of Subcontractor Monitoring

“The EEOC is now recommending that general contractors take a leadership role in preventing harassment at the workplace as a whole, even with respect to employees of their subcontractors and staffing agencies,” said Marissa Mastroianni, an attorney with Cole Schotz in Hackensack, N.J. “The guidance gives specific examples of measures general contractors should take, which in some cases can require a significant amount of intrusion in the internal operations of their subcontractor.”

The guidance recommended that general contractors periodically:

• Ensure that subcontractors are complying with the obligations set out in their contracts.
• Monitor the effectiveness of subcontractors’ efforts to prevent and correct harassment, which could include conducting tests or spot checks of their harassment complaint procedures.
• Review training materials to determine whether they include accurate and sufficient information about harassment policies, complaint procedures, and related topics such as retaliation.
• Ensure that concerns or complaints regarding harassment policies, complaint systems, or trainings are addressed appropriately and that any necessary changes are implemented and communicated to workers.

“When 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, especially when harassment is occurring between works from different employers,” the EEOC stated in its guidance. “When circumstances warrant, work with the subcontractor’s management team to remove or bar harassers from the workplace.”

Employers should ensure that all workers have multiple reporting channels to share complaints, the EEOC added. For example, it recommended, contractors should confirm that every subcontractor has implemented a complaint channel and should provide an anonymous hotline for all workers.

Guidance’s Broader Significance

This guidance is another example of the EEOC focusing on workplace discrimination in industries and sectors where employees with certain protected characteristics are underrepresented, Mastroianni said.

Employers in such industries and sectors as construction; finance; manufacturing; and science, technology, engineering, and math “should pay particular attention to ensuring their equal employment opportunity practices—including recruitment and hiring—are up to snuff,” she said.

HR should follow the five core principles and promising practices described in the guidance to ensure their companies “can easily demonstrate that they are meeting each and every one of those practices,” Mastroianni said.

Elements of an Anti-Harassment Policy

Existing anti-harassment policies should be reviewed and possibly revised to ensure compliance with the EEOC’s recommended elements in a comprehensive anti-harassment policy described within the guidance, Mastroianni added.

Those elements include:

• A clear description of who is covered by the policy.
• A clear description of prohibited conduct, with examples tailored to the work environment.
• An unequivocal statement that harassment is prohibited.
• A description of complaint and reporting processes.
• A statement that workers are encouraged to report harassment, bullying, or other inappropriate conduct.
• A commitment that the employer will provide a prompt, impartial, and thorough investigation.
• A statement that workers are encouraged to respond to questions or to otherwise participate in investigations regarding alleged harassment.
• An assurance that the employer will take immediate, reasonable, and proportionate corrective action if it determines that harassment has occurred.
• An unequivocal statement that retaliation is prohibited.

“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,” the guidance said.

No matter what industry an employer is in, the EEOC’s most recent guidance serves as a reminder that the EEOC expects employers to enforce comprehensive anti-harassment policies and conduct effective and specifically tailored anti-harassment workplace training.

“While some jurisdictions—including New York, California, Connecticut and Illinois—specifically require employers to conduct certain workplace trainings at various intervals of the employment cycle, all employers even outside of those jurisdictions should strongly consider providing training to their employees to mitigate against risk for workplace harassment,” Mastroianni said.