By Anthony M. Kroese, Esq. and Christopher Maugans, Esq.
The #MeToo movement and its widespread publicity of issues involving sexual harassment is transforming the way employers do business, both in the office and at the jobsite. States and localities have enacted legislation (or are in the process of doing so) enumerating more requirements that employers must follow and imposing broader interpretations of what constitutes harassment and discrimination. For some industries, including the construction industry, the shift of attention to preventing harassment and discrimination is unknown territory, leaving questions that need answers. For example, what is the harassment? How is it defined? Is harassment limited to sexual harassment? What should businesses do in order ensure a harassment and discrimination free environment for its employees and to comply with ever expanding legal requirements?
IDENTIFYING SEXUAL HARASSMENT
Under federal law the longstanding standard for sexual harassment that creates a hostile work environment is words or actions that are severe or pervasive in that they create a work atmosphere that is abusive and intimidating. A single serious incident can be “severe” enough to be actionable under the law. Examples of this conduct include, but are not limited to, sexual assault or sexual touching of an intimate body part. In determining where harassment is “pervasive,” there is no magic number of harassing incidents that automatically gives rise to liability; rather, relevant considerations include frequency of the conduct and whether the actions occurred close together in time.
Some states and localities have abandoned the “severe and pervasive” standard and adopted a broader definition. In this article, we consider the current legislation in New York as an example. On August 12, 2019, Governor Andrew Cuomo signed expansive harassment and discrimination legislation that effectively eliminated the “severe and pervasive” standard, effective October 11, 2019. The new standard is that it is unlawful “to subject an individual to … inferior terms, conditions, or privileges of employment because of an individual’s membership in one or more of these protected categories … regardless of whether such harassment would be considered severe and pervasive under precedent applied to harassment claims.” However, the new law does add a narrow affirmative defense for employers who can establish that “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.”
POLICY UPDATES AND TRAINING
It has always been advisable for employers to implement equal employment opportunity policies and strong anti-harassment and discrimination prevention policies. Such policies demonstrate an employer’s commitment to preventing harassment and discrimination in the workplace. As a result, the policies signal to potential harassers that harassing conduct will not be tolerated, while assuring victims of harassment that they should feel safe filing complaints with their employers.
Having robust anti-harassment and discrimination polices have also served the additional purpose of acting as a defense to harassment and discrimination claims. For 20 years, employers have relied on what has become known as the Faragher/Ellerth defense, the name coming from the two U.S. Supreme Court decisions. The defense essentially protects employers from liability if the employer exercised reasonable care to prevent and promptly correct the harassing behavior, and/or if the employee alleging harassment failed to take advantage of any preventive or corrective opportunities provided by the employer (e.g., by filing an internal complaint).
While the Faragher/Ellerth defense remains intact in response to federal discrimination and harassment claims, some jurisdictions have reduced the power of the defense. For example, effective October 11, 2019 in New York, the failure of an employee to file an internal complaint “shall not be determinative of whether such employer … shall be liable.” In other words, while an employee’s failure to file an internal complaint may be a factor in determining whether the employer is liable, it is no longer determinative.
Despite the apparent elimination of the Faragher/Ellerth defense in New York, employers are still advised to implement robust anti-harassment and discrimination prevention policies. This is because effective October 9, 2018, all employers that do business in New York are required to implement a sexual harassment policy and to make a complaint form available for employees. Moreover, New York now also requires employers of all sizes to train employees on sexual harassment on an annual basis. The first mandatory training was required to have occurred by October 9, 2019. The law further requires that at each training employees are provided with copies of the employer’s sexual harassment policy and the training materials, in English and the primary language of each employee.
WHEN TO INVESTIGATE A COMPLAINT?
Regardless of what jurisdiction your business operates in, it is always advisable to conduct a prompt, thorough, and objective investigation following any internal complaint of harassment or discrimination. Take note that employees need not know “magic words” to file a complaint, and that employers should investigate complaints as soon as they have knowledge of allegations that could potentially constitute harassment or discrimination, regardless of whether the conduct was reported to human resources or a manager.
Some localities, including New York, now specifically require all complaints to be investigated and further impose requirements as to how the investigation should be completed. It is important to confirm the investigation requirements where you operate. The investigation requirements may include, but are not limited to, interviewing all parties involved and any relevant witnesses, gathering any relevant documents (e.g., emails, text messages), drafting a written report, notifying the individual who complained of the final determination, and implementing any corrective actions. The nuances of conducting effective investigations have increased and resulted in more investigations being outsourced externally to skilled investigators, including employment attorneys.
WHO CAN BE THE TARGET OF SEXUAL HARASSMENT?
Under federal law, sexual harassment can only be committed by individuals who fall within the definition of “employee”. However, some states have expanded what conduct is covered. For example, in New York, sexual harassment can occur between any individuals, regardless of whether they are employees, paid or unpaid interns, or non-employees, including independent contractors, and those employed by companies contracting to provide services in the workplace. Stated differently, a perpetrator of sexual harassment can be a superior, a subordinate, a coworker, or anyone in the workplace including an independent contractor, contract worker, vendor, client, customer, or visitor to the jobsite.
WHERE CAN SEXUAL HARASSMENT OCCUR?
Unlawful sexual harassment is not limited to the physical workplace itself. It can occur while employees are traveling for business or at employer sponsored events or parties. Calls, texts, emails, and social media usage by employees can constitute unlawful workplace harassment, even if they occur away from the workplace premises or not during work hours. For this reason, employees should be trained that the sexual harassment policy “is a shadow,” and following them everywhere.
TIPS FOR PROTECTING YOUR BUSINESS
While there has been heightened media attention in relation to sexual harassment, harassment in relation to every protected class (e.g., race, color, religion, sex, national origin, age, disability, etc.) is prohibited by the law. Accordingly, employers are well advised to evaluate their anti-harassment and discrimination prevention policies that cover all protected classes at the federal and applicable state levels, and to train employees on the same on an annual basis, regardless of whether your jurisdiction requires it. Be sure to reinforce the importance of the company policies at toolbox talks throughout the year.
As we have consistently emphasized, documentation is king. Require employees to sign “acknowledgement and receipt” forms when they receive your policy and at each annual training. Moreover, provide managers with training above and beyond the training of every day employees, so that your managers are better able to identify and respond to situations of purported harassment or discrimination.
Following these tips will help put your organization in the best possible position to defend against discrimination and harassment claims made by employees.
CLOSING THOUGHT
While there is no mandatory requirement imposed by federal law to have an anti-harassment and discrimination prevention policy and to train employees on an annual basis, employers are advised to do so regardless of the jurisdiction where the construction project is located.
about the authors:
Anthony Kroese focuses his practice at Goldberg Segalla on commercial litigation, business services, sports and entertainment, and construction law matters. Anthony serves a wide variety of clients in commercial transactions, personal and commercial real estate, and the creative and cost-effective resolution of development and construction contract disputes. Anthony also focuses his practice on worksite safety and proactive strategies employers in all industries should take to mitigate risk.
Chris Maugans is an associate with the law firm Goldberg Segalla LLP. Chris concentrates his practice on counseling and defending businesses on matters involving employment and labor law, serving both public- and private-sector clients. Prior to joining Goldberg Segalla, Chris worked in-house in a dual human resources and legal counsel role. www.goldbergsegalla.com
Modern Contractor Solutions, December 2019
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