Limiting Female Construction Worker's Assignments Was Adverse Action

​While employers have discretion in making assignments and can justify certain limitations in duties, a construction company's refusal to let a female employee work at elevation led to a discrimination claim that is now moving forward to trial.

The plaintiff worked for Performance Contractors, a construction company that was contracted to work at a chemical manufacturing complex. Performance hired the plaintiff in December 2016 as a laborer and then, after a layoff, rehired her as a helper. This was a promotion, as laborers do administrative work and cleaning, while helpers have a more hands-on role. They follow pipefitters and welders around the site to help with construction on the ground or at elevation.

The plaintiff was the only female helper in her designated area. Before working at Performance, she had worked for another construction company where she worked at elevation. Elevation was more advanced work and would bring pay raises and more opportunities for her.

When the plaintiff started as a helper in her designated area, the area's general foreman, a man, allegedly told her in front of others that she could not work at elevation because she was a woman. In addition, he allegedly stated that women were not allowed "on the rack" (i.e., scaffolding) because Performance did not have harnesses that fit women. The foreman denied saying these things to the plaintiff but acknowledged that he could have said them in general.
The plaintiff also claimed that the foreman made a vulgar statement in her presence. He acknowledged that such behavior was common in a construction setting. The plaintiff alleged that she complained to the superintendent and the area manager about the foreman's behavior several times.

The plaintiff also witnessed conversations between the superintendent and her husband, who was her direct supervisor at Performance, discussing the fact that the project manager did not want women working on this project. At one time, Performance was short on helpers at elevation, and she was allowed to work at elevation for three days. The plaintiff testified that once Performance's management saw her at elevation, it told the superintendent not to let her up there again.

The plaintiff also claimed she experienced multiple instances of sexual harassment. She said that one day at work, the superintendent texted her a picture of his genitals and asked her to send back a picture of her breasts. He also allegedly asked on several occasions to grab and squeeze her breasts. The plaintiff told her husband, and he called and left messages for HR that allegedly were never returned. The plaintiff further said that one of Performance's welders approached her from behind, asked her age, then said she was in her "sexual prime." He then reportedly approached her from behind and grabbed and massaged her shoulders. She complained to her husband and other supervisors, yet no action was taken.

The plaintiff experienced anxiety and depression as a result of these instances, causing her to miss work to go to a doctor's appointment. Performance suspended her based on poor attendance and tardiness. She tried to call HR about her suspension and could only leave a message, which she said no one returned. The plaintiff also visited HR in person, but no one was available to help her. She then resigned, but Performance claimed it never received her letter and then fired her.

The plaintiff filed charges with the Equal Employment Opportunity Commission and later sued for sex discrimination, sexual harassment and retaliation. Performance moved for summary judgment, which the district court granted. The plaintiff appealed to the 5th U.S. Circuit Court of Appeals.

On appeal, the 5th Circuit considered whether the plaintiff suffered an adverse employment action to establish discrimination. It found that the restriction from elevation work satisfied the adverse action requirement because it effectively demoted her to a laborer. The 5^th Circuit also found evidence of severe and pervasive harassment based upon her allegations and the fact that she had tried to report misconduct to Performance, which did not effectively address the harassment. The plaintiff also presented sufficient evidence of retaliation based on her suspension and firing shortly thereafter.

The 5th Circuit thus reversed the district court and revived her claims for trial.

Wallace v. Performance Contractors Inc., 5th Cir., No. 21-30482 (Jan. 3, 2023).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.