January 1, 1900

by Joanne Rathgeber

Bullying, profanity, racial epithets. No one is told to stop. Are we at a Junior High School Playground?

Vile sexist and racist graffiti on the bathroom walls. No one cleans it up. Perhaps we are seeing the bathroom at a juvenile detention center?

A hangman’s noose is left swinging for days to intimidate racial minorities who complain about mistreatment. No one takes it down. Those in charge look the other way or even make jokes about it. Is this the deep south in the 1920’s?

Sadly, these scenarios are not isolated, and are not from a distant time and place. They have played out in the last several years here in Pennsylvania. This outrageous and illegal behavior has been tolerated, even dismissed with a shrug because it is so commonplace in construction sites. Most of us know that racial and gender discrimination in the workplace is illegal. Why then is harassment of racial minorities and women so pervasive at construction sites?

Many an upstanding and reputable contractor would not consciously allow racial discrimination, but still would not consider it “his business” to interfere with the behavior of another contractor’s or subcontractor’s employees on a worksite. Similarly, a landowner may observe objectionable behavior, but chose to ignore it, just hoping to get the job done. Turning a blind eye to harassment based on race or sex is bad business, because this behavior saps productivity and causes strife. And, ignoring harassment may subject all of these parties to liability for civil rights violations.

Construction sites often pose uniquely difficult issues of supervision because the lines of authority are not clearly drawn. Who is responsible for the racial harassment by employees of one of the many subcontractors on a site? The subcontractor? The contrac­tor? The union? The landowner? Yes, yes, yes and yes.

Who Are My Employees and When Am I Responsible for Their Actions?

Liability for illegal behavior may be more far reaching than most contractors understand. Lurking in the law is the concept of “joint employer”. If the job of a contractor requires subcontractors, or if workers are hired through a temporary agency, or even if you simply own the property where a job is being performed may create liability.

Under Title VII of the Civil Rights Act, the term “employer” has been construed liberally and does not require a direct employer/employee relationship. Under the concept of “joint employers”, the Courts assume in the first instance that the companies are what they appear to be – independent legal entities that are working together. The most important issue in determining whether two separate employers are in fact joint employers is the aspect of control. It is a matter of determining which of two, or whether both, control the labor relations of a given group of workers. Has one employer, in fact, retained sufficient control of the terms and conditions of employment of the employees who are employed by the other employer?

The Courts will apply the law to the facts. What are the facts? Some of the important ones are:

These are some of the questions that the Courts will ask. While Title VII contemplates some employment relationship, this relationship need not link together the plaintiff and the defendant. The Court have construed the term employer in a functional sense to encompass persons who are not employers in conventional terms, but who nevertheless control some aspect of an employees compensation or terms, conditions or privileges of employment.

Any company working in conjunction with another, who exercise some control over their employees better be aware of what constitutes liability under the discrimination laws.

You Can be Liable if you Did Not Know What was Happening on the Work Site, but you “Should Have"  Known

There are two types of liability, when a supervisor with immediate or successively higher authority over the employee creates a hostile environment and takes tangible employment action, or when it is a coworker who is the perpetrator.

If the supervisor was the harasser, the employer has no defense if the employee suffered an adverse job action. This employment action could include the loss of the job, or something as simple as a change in shift or denial of overtime. So that even if the employer argues that it exercised reasonable care to prevent and correct the harassing behavior or that the employee failed to take advantage of preventive or corrective opportunities provided by the employer, liability still attaches.

If the harasser was a coworker, the employer is liable if an employer knew or should have known of the harassment and failed to take proper action. That proper action consists of a thorough investigation and remedial action which is sufficient to prevent further harassment in the future.

What Constitutes Harassment or a Hostile Work Environment?

Liability exists when:

What Constitutes Severe or Pervasive?

In order to be actionable under Title VII, a sexually or racially objectionable environment must be both objectively and subjectively offensive. It must be something that would be objectionable to any reasonable person, and it must be objectionable to the victim. The Courts will determine whether the environment is sufficiently hostile or abusive by looking at the frequency and severity of the conduct and whether it was physically threatening or humiliating. The conduct must also unreasonably interfere with an employee’s work performance.

What if the Company has a Written Anti-Discrimination Policy?

The Supreme Court has held that an employer is vicariously liable for the acts of a managerial employee and open to punitive damages if the employer failed to show a good-faith effort to comply with Title VII. To meet the good-faith compliance standard, the employer must at least adopt anti-discrimination policies and make a good faith effort to educate its employees about these policies and the statutory prohibition. The employer must demonstrate both that they maintain a strong policy against harassment and that they adequately trained its employees to comply with the policy.

How Does an Employer Stay Out of Trouble?

Adopt a written policy. Train their employees on that policy. Implement the policy. Keep their eyes and ears open. When there is a complaint, investigate it thoroughly. Punish the wrongdoer sufficiently to prevent others from harassing. Provide sensitivity training after an incident of harassment occurs.

Stay alert in any working arrangement. You may be the employer, even if you do not think so.

Joanne Rathgeber is partner-in-charge of the Employment & Labor Law Practice Group of Hill Wallack LLP in the Doylestown, Pennsylvania Office.