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Women and Minorities in Construction

August 31, 2000

Discrimination in the construction industry: where are we now?

Ogden Murphy Wallace, P.L.L.C.

From a legal perspective, much progress has been made in the advancement of women and minorities in the construction industry.

One reason for the change is that there have been various federal, state and local equal employment opportunity or affirmative action requirements in recent years, particularly with respect to government contracts. Though state law has changed regarding affirmative action, federal affirmative action laws still exist.

According to the Office of Federal Contract Compliance Programs (OFCCP), contractors are required as a condition of having a federal contract to "engage in a self analysis for the purpose of discovering any barriers to equal employment opportunity."

OFCCP notes that "no other Government agency conducts comparable systemic reviews of employers’ employment practices to ferret out discrimination."

For construction contractors, OFCCP, rather than the contractor, establishes goals and specifies the required affirmative action. Its national goal for women in construction, for example, is 6.9 percent. Construction contractors are not required by OFCCP to develop their own written affirmative action programs, but there are several good faith steps that they are required to take to increase the utilization of women and minorities in the skilled trades.

Anecdotally, it appears that the construction trades have been better at compliance with the federal requirements than other industries with federal contracts. For example, of the more than 70 press releases issued by the OFCCP relating to enforcement actions, only one of them appears to involve a construction project. This is good news for the construction industry, especially as the number of women and minorities in the construction trades increases.

Large federal construction projects have promoted the employment of women and minorities on a national level. Women worked 8 percent of the total hours worked on the Oakland Federal Building project site.

The New York Federal Courthouse project used a workforce that involved minorities working 35 percent of the total hours worked on the project, and about 6 percent of the total hours worked on the project were worked by women.

Locally, the federal courthouse in Seattle may provide similar opportunities. Additionally, the tight job market in the Puget Sound region may also contribute to an increase of women and minorities in the work force.

The OFCCP notes that affirmative action requirements are causing federal contractors to review their employment policies, including compensation systems, and training their managers and supervisors to identify and correct harassment and discrimination in the workplace. A U.S. Department of Labor survey found that women advanced more quickly in contractor firms than in noncontractor firms.

Locally, I have experienced an increase in requests from contractors in the construction industry for assistance with developing or updating antiharassment and antidiscrimination policies, and in requests for training. These requests are motivated by a variety of factors. For example, some are motivated by the OFCCP regulations.

Other requests for training are motivated by an increase in interpersonal conflicts among employees, or by claims based on harassment or discrimination, most commonly related to sex, race and disabilities.

These issues seem to arise most often when a workforce that is unaccustomed to the presence of women or people of another race experiences an increase in their numbers on the jobsite. As time goes on and more women and minorities enter the trades, these issues may become less acute. That has been the pattern in other traditionally white male industries and lines of work, such as the military and police and fire services.

Adoption of a policy and training also may be part of a risk management program because it is required by an insurer for employee practices liability coverage. Other contractors realize that adopting a policy against harassment and discrimination and conducting training can be a defense to a hostile work environment lawsuit, and use the policy and training as a good risk management practice.

Because of the fluid nature of the construction workforce and the temporary nature of most positions, training is more challenging for construction companies than it is for other industries. Unlike companies with a stable workforce, it is generally not feasible to train every construction worker hired for a project on sexual harassment and discrimination issues.

As a result, having a clear policy is essential because the policy may be the only information that most construction workers receive regarding what constitutes harassment or discrimination and how to report it. The policy can, and should, be distributed to every employee, no matter how temporary.

Whenever possible, all supervisors should receive training on sexual harassment. This is especially true for supervisors who have control over the hiring and firing or other working conditions of the employees they supervise because, in many circumstances, their conduct is attributable to the company even if the company did not know what was going on. Likewise, a supervisor’s failure to follow up on a situation that the supervisor is aware of may lead to liability on the part of the company.

Overall, from my work with the construction industry on harassment and discrimination issues, it appears that these issues are being taken more seriously than they were in the past, and that construction companies are more willing to be proactive in developing policies and conducting training. This progress is important as the number of women and minorities in the construction trades increases.

As the economy continues to boom and unemployment rates continue to be at all time lows, the face of the construction industry workforce is changing, and adaptation to these changes is crucial to success.

Karen Sutherland is the chair of the Employment and Labor Law Practice Group at of Ogden Murphy Wallace, P.L.L.C , a regional law firm. She primarily represents businesses and municipalities, and also conducts training on discrimination and harassment issues. She can be reached at ksutherland@omwlaw.com.

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