Client Alerts
May 15, 2023

It's Gotta Stop!

Stites & Harbison Client Alert, May 15, 2023

Unfortunately, racial discrimination still occurs on construction sites throughout the country. Fortunately, leaders within the construction industry are taking steps to eliminate racism and other forms of discrimination within the industry. The Equal Employment Opportunity Commission (“EEOC”) is stepping up enforcement efforts against the construction industry, as demonstrated, in part, by the EEOC’s recent $1.2 million settlement with The Whiting-Turner Contracting Company (“Whiting-Turner”) on a discrimination and retaliation claim. The battle cry of the construction industry must be, “It’s gotta stop!”

On September 30, 2021, the EEOC filed a Complaint against Whiting-Turner in the U.S. District Court, Middle District of Tennessee, alleging that Whiting-Turner subjected Black employees to a racially hostile work environment and discriminatory work conditions on a project in Clarksville, Tennessee. The EEOC claimed that Whiting-Turner assigned Black employees to the most physically laborious work tasks on the project; while it routinely gave White employees less physically arduous job responsibilities. In the Complaint, the EEOC further alleged that Whiting-Turner appointed a White supervisor to oversee an all-Black crew; and the White crew leader repeatedly referred to the Black employees as “boy,” “m----- f-----,” and “you.” The EEOC also alleged that the White superintendent frequently told the Black employees to “get ya Black asses back to work.” The EEOC further contended that every porta-potty on the worksite was covered in racially offensive graffiti and epithets which included, but was not limited to, references to the KKK, White Power, demands for Black people to “go back to Africa,” and the N-word. The EEOC’s Complaint further alleged that two of the Black employees complained to Whiting-Turner about the racial discrimination and hostile work environment; and, after hearing such complaints, Whiting-Turner terminated those two workers and removed them from the worksite.

On May 3, 2023, the Court entered a two-year Consent Decree which outlines the terms of the settlement between Whiting-Turner and the EEOC. Under the terms of the settlement, Whiting-Turner agreed to pay $1.2 million, which will be distributed to the claimants in the lawsuit as determined solely by the EEOC. Additionally, Whiting-Turner is enjoined from subjecting any employee to a racially hostile work environment, from knowingly permitting any racial graffiti or racial epithets on its jobsites, and from engaging in any form of retaliation against any person who complains about unlawful discrimination. In accordance with the settlement, Whiting-Turner is also required to revise its anti-harassment policy within 90 days of the entry of the Consent Decree; and it must incorporate a zero-tolerance policy for racial graffiti, racial jokes, racial slurs, racial epithets, and hate symbols in its workplace. Additionally, Whiting-Turner is required to provide in person or video anti-harassment training to all of its employees. Whiting-Turner is also required to assign an Equal Employment Opportunity Liaison to each of its construction sites. The Consent Decree specifically provides that, by agreeing to the terms of the settlement, Whiting-Turner in no way admits to any wrongdoing with respect to the EEOC’s allegations in the case.

The EEOC’s recent settlement with Whiting-Turner is emblematic of the EEOC’s enforcement efforts to battle racism and other forms of discrimination on construction sites. Charlotte Burrows, EEOC Chair, stated, “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. Unfortunately, the shocking findings of the EEOC’s investigation in this case are not an isolated occurrence in the industry. The EEOC will continue to use all of its tools – from outreach to vigorous enforcement and litigation – to address these systemic problems.”

In May 2022, the EEOC held a hearing to investigate racism and sexism in the construction industry after a number of bias-related incidents on job sites gained media attention following George Floyd’s murder. During that hearing, EEOC officials specifically referenced the $1.2 trillion Infrastructure Improvement and Jobs Act, because they wanted to ensure that federal dollars were not funding racism or discrimination in the construction industry.

In January 2023, the EEOC published its draft Strategic Enforcement Plan (“SEP”) for 2023-2027 as part of its strategic planning process. This SEP outlines the EEOC’s official road map for its enforcement efforts through 2027. In one section of the SEP, entitled “Eliminating Barriers in Recruitment and Hiring,” the EEOC specifically identifies the construction industry as one which lacks diversity. Such reference in the EEOC’s 2023-2027 SEP indicates that the EEOC will step up its enforcement efforts against the construction industry. Additionally, the EEOC increased its 2023 fiscal year budget by $35 million, which further demonstrates that the EEOC plans to escalate its enforcement actions against the construction sector. Even though the 2023-2027 SEP is not yet finalized and approved, the EEOC has put the construction industry on notice of a potential claim.

Fortunately, the construction industry has access to numerous resources to battle racism and discrimination. In 2020, six leading contractors created a consortium which eventually led to Construction Inclusion Week. Those organizing firms were Clark Construction Group, DPR Construction, Gilbane Building Company, Mortenson Construction, McCarthy Building Companies, and Turner Construction Company. The purpose of Construction Inclusion Week is to build awareness of the need to improve diversity and inclusion in the construction industry by providing both content and resources to the construction sector. The first Construction Inclusion Week was held in October 2021, and the third Construction Inclusion Week will be celebrated this year on October 16-20, 2023.

Once again, the EEOC has put the construction industry on notice of its enforcement efforts to eliminate racism and discrimination in the construction industry. No contractor wants to make the headlines like Whiting-Turner did recently with its $1.2 million settlement with the EEOC. The construction industry must support efforts, such as Construction Inclusion Week, and utilize other readily available resources to eradicate racism and discrimination in the construction industry. Let’s unite in our battle cry, “It’s gotta stop!”

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