Construction industry under increased scrutiny for sex discrimination claims | OP-ED • Daily Journal of Commerce

April Frederickson

It’s no surprise that women are underrepresented in the construction industry. The latest statistics published by the U.S. Bureau of Labor Statistics reveal that women make up about 10 percent of the workers in the industry. Employers in the construction industry have made significant progress toward creating safe and productive workplaces, but the lack of women in the industry and on jobsites, combined with an increased focus on discrimination, harassment, and sexual violence faced by women at work, should cause all employers in the construction industry to take notice and review their policies and procedures.

The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing federal laws prohibiting employment discrimination, is paying particular attention to what it believes is “severe and pervasive” discrimination in the construction sector directed towards women and people of color. In May of 2022, the EEOC held a hearing to discuss discriminatory practices in the construction industry and has, since then, filed several lawsuits against construction industry employers in a targeted attempt to shine the spotlight on the industry.

In addition to increased scrutiny by the EEOC, the last few years have seen several new state and federal laws focused on improving working conditions for women and increasing gender equality in the workplace.

For example, under Oregon’s Workplace Fairness Act, every employer, regardless of size, must now have a written discrimination and harassment policy. The policy must provide a mechanism for employees to make a complaint, must identify one primary and one alternate individual designated to receive complaints, must inform employees of the five-year statute of limitations applicable to a legal claim, and must advise employees to document any incident of illegal conduct. The Act also makes it unlawful to prevent current and former employees from discussing allegations of unlawful harassment or discrimination that occur in the workplace or at work-related events through nondisclosure and nondisparagement agreements. Confidentiality is only permissible if requested by the employee.

The Oregon Equal Pay Act is designed to promote pay equity based on sex and other protected classes such as race, color, religion, sexual orientation, national origin, marital status, veteran status, or disability. Under the Act, employees performing comparable work must receive equal pay unless the difference is based on a seniority system, a merit system, a system that measures earnings by quantity or quality of production, including piece-rate work, workplace location, travel, education, training, or experience. Moreover, comparable work involves work that requires substantially similar knowledge, skill, effort, responsibility, and working conditions in the performance of work, regardless of job description or job title. Construction industry employers should analyze any potential pay disparity between men and women (and other protected classes) working in comparable jobs and should take steps to remedy any potential disparity that cannot be explained by a legally permissible factor.

Two new federal laws enacted in 2022 expand protections for pregnant workers. The Pregnant Workers Fairness Act, which goes into effect on June 27, 2023, gives workers the right to receive reasonable accommodations, like light duty, breaks, or a stool to sit on, for pregnancy, childbirth recovery, and related medical conditions, including lactation, unless it would be an undue hardship on the employer. The Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act expands breastfeeding accommodations to exempt employees.

Finally, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act preserves an employee’s right to litigate sexual assault and/or sexual harassment claims in court making pre-dispute arbitration agreements optional for these claims.

While employers in the construction industry have made great strides in ensuring workplace safety and equality, they can and should take further steps to prevent gender inequality, which may lead to sex-based discrimination and/or harassment claims. First and foremost, it’s important to implement policies and procedures designed to prevent, detect, and remedy unlawful harassment. Second, it’s important to train all employees on appropriate behavior in the workplace. Third, it’s important to take complaints seriously, to investigate them, and to implement corrective action designed to end harassment. Finally, it’s important to review your hiring practices, opportunities for promotion, and pay for women in the workforce. Although there are no guarantees when it comes to litigation, being proactive will help prevent and defend costly litigation.

April L. Fredrickson is a partner with Miller Nash LLP and represents public and private employers throughout Oregon and Washington in all areas of labor and employment law. She advises clients on a broad range of workplace and employment issues, including employment policies and practices, state and federal leave laws, wage and hour compliance, disability accommodation, employment discrimination, harassment and retaliation claims, predictive scheduling compliance, and employee discipline and termination. April can be reached by phone at 503-205-2536 or by email at [email protected]