MeToo? dosen't have to be By: michael dee & greg trif, o'toole scrivo
O
ver the past eighteen months, we have seen the impact of the #MeToo movement affect nearly every industry across the country. One thing is plain – the construction industry is not immune. Contractors, like many other employers, are rightfully taking proactive steps to ensure that any unlawful harassment (whether based on sex, gender, race, national origin or any other protected category) is identified and corrected appropriately. These preemptive steps are important, not only to root out unlawful behavior and ensure that it stops, but also to defend against any meritless claims, reduce exposure to costly litigation and judgments, and minimize a public relations nightmare.
1. The Majority of Our Workforce is From the Union Hall; Can We Rely on the Union or Trade Association to Ensure a
No. To be clear, unions and trade associations can and should play a vital role in eliminating harassment in the workplace. However, in most circumstances, it is the contractor’s responsibility – not the union or trade association – to provide a workplace free from discrimination and harassment. As a result, contractors should have their own anti-harassment policy, complete with a well-known process for reporting complaints of harassment. 2. To Whom Should the Policy Apply? Ideally, everyone. Under state and federal law, an employer has an obligation to provide a workplace that is free of unlawful harassment. In addition, many government and private contracts separately require that contractors maintain policies prohibiting discrimination and harassment in the workplace. There is no exception if the harasser or accused is represented by a union. Likewise, there is no exception if the harasser is a vendor, or employee of a different contractor working at the site. Accordingly, to be effective, any anti-harassment policy must be crafted to ensure that the workplace is free from harassment and discrimination for all employees regardless of the source of the harassment. In fact, contractors should consider including provisions in subcontracts that require their subcontractors to maintain and enforce an effective anti-harassment and anti-discrimination policy. 3. Must I Negotiate the Policy with the Union?
Labor Relations
As most employers are aware, the first line of defense to claims of unlawful harassment is an effective anti-harassment policy. In 1998, the U.S. Supreme Court in two companion cases mapped out a potential affirmative defense for employers under the federal Civil Rights Act of 1964 (“Title VII”) in sexual harassment cases. Also known as the Faragher/Ellerth Defense, an employer may avoid liability for harassment if it can demonstrate: (1) it took reasonable steps to prevent and promptly correct sexual harassment in the workplace (i.e., implemented an effective anti-harassment policy); and (2) the aggrieved employee unreasonably failed to take advantage of the employer’s preventative or corrective measures. This front line defense is no less critical in the construction industry; it does, however, present some unique challenges for contractors. Below are answers to some questions all contractors should consider today.
Workplace Free from Harassment?
It depends. In general, an employer or its authorized representative must negotiate with the union any material changes to terms and conditions of employment. Such duty often includes the implementation of anti-harassment policies; however, a review by legal counsel of the specific policy to be implemented and the applicable collective bargaining agreement is necessary to determine what bargaining obligations may exist. 4. What Should Be in the Policy? At a minimum, the policy must prohibit unlawful discrimination; however, contractors should consider broader protections than what the law requires. The policy also should place an obligation on all employees to report any conduct violative of the
Utility & Transportation Contractor | february| 2019 47