A recent Fourth Circuit Court of Appeals case held that an employee can bring a claim of harassment discrimination based upon a supervisor’s single remark. Perhaps more important, the court also held that the employee is protected from retaliation even if the incidents complained of would not amount to a hostile work environment. What does this mean for the construction contractor? It makes effective supervisor training and a reliable complaint process much more important in preventing discrimination claims.
Contractors need to understand that they are liable for the conduct of supervisors. In general, supervisors – as members of management – are viewed as speaking on behalf of the employer. For this reason, contractors are automatically liable when a supervisor engages in “quid pro quo” discrimination, or “give me sex or else. . .” While quid pro quo cases are pretty obvious and serious, verbal conduct is less so.
The Fourth Circuit case involved a white supervisor alleged to have made two racial comments to an African-American employee. The employee complained but was fired, and sued the employer alleging hostile work environment and retaliation. The company tried to dismiss the case by arguing that two comments did not create a hostile work environment and since there was no illegal work environment the employee’s retaliation claim was groundless. The court disagreed on both grounds.
The construction industry is usually allowed a little more leeway when it comes to verbal remarks on the theory that it is a “hurly-burly” environment where harsh words and sometimes violent acts occur. That is increasingly problematic and risky.
Document Training of Managers
Contractors need to document training of managers and supervisors. Ideally, the training should specifically address verbal remarks and their dangerous consequences. Supervisors need to know that a single adverse remark may be enough to justify a discrimination claim that exposes the company to liability. Obviously, the contractor will want to be able to prove that supervisors were explicitly told not to make such remarks.
The other important lesson here is that contractors need to be open and welcome any sort of complaint by an employee. That does not always mean that you have to believe the employee’s side of the story. But it does mean that you need to have a credible, sensible “open door” policy that allows employees to complain and, most important, protects them from retaliation for bringing the complaint to your attention.
Here is some sample language: “We want our workplace to be safe and pleasant for everyone here. If you have a complaint or problem, please bring it to me or your manager/supervisor. If you do not feel comfortable raising the matter with your supervisor or me, please take it to (name person of opposite gender). In all cases, you will not be adversely affected by bringing the matter to our attention, although we reserve the right to do what we think is legally required and correct given all of the facts and circumstances.”
Note that the sample language features a male and female to bring a compliant to. This is deliberate and is required in sexual harassment scenarios to protect the contractor. The employee has a duty to report conduct but the process must facilitate reporting and not discourage it. Reporting harassment to a person of the opposite gender may discourage such reports and create liability for the contractor. Thus, an effective “open door” policy should list a person of each gender who will accept complaints on behalf of the company.
Contractors with employee handbooks should consider putting similar language in their handbooks. Those contractors without a formal handbook can post similar language where it is likely to be seen by all employees or print similar language and stuff it in a paycheck envelope.
If and when an employee makes a complaint or reports a problem, contractors should reassure the employee that the matter will be treated with respect and, to the extent possible, confidentiality. Then, conduct whatever investigation or inquiry is warranted by the circumstances. Finally, draw a conclusion and take action to correct the problem. Even if you decide to do nothing, it is advisable to sit the employee down in private and explain why you have reached that conclusion. It is always a good idea to document the entire process, but you do not have to share that documentation with the employee.
If you follow these steps, you will reduce the chances of getting sued and improve the chances of winning a lawsuit if you are sued.