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Partnering With Industry: DRI Construction Law Committee Insights on Legal Issues Raised by NAWIC Leaders
July 10, 2019
Originally published in DRI - The Critical Path, Volume 23, Issue 2

This month, I had the pleasure of interviewing the top two leaders in the National Association of Women in Construction ("NAWIC"), the Association's President, Dove Sifers-Putman, and its Vice-President, Anne Pfleger. Through these interviews, we learned of three issues that are important to NAWIC members: Harassment and Discrimination in the Workplace, Gender-Specific Personal Protective Equipment, and Accommodations for Mothers and Pregnant Women. In connection with the DRI Construction Law Committee's Partnership with Industry, our Committee reflected on these important issues, and have the following feedback for our friends in NAWIC.
Harassment and Discrimination in the Workplace
Title VII of the Civil Rights Act of 1964 ("Title VII") prohibits employers from discriminating against an employee "with respect to his [or her] compensation, terms, conditions, or privileges of employment" on the basis of sex. Common employment discrimination claims arising out of Title VII include harassment, retaliation, and disputes over promotion, advancement, and compensation. Due to the low percentage of women represented in construction, these women are especially vulnerable and it is important for businesses to appropriately address discrimination in the workplace. In 2018, the Equal Employment Opportunity Commission ("EEOC") received fewer charges overall than in previous years, but it received more charges of sex-based discrimination. Of the charges filed in 2018, 32.3 percent of charges alleged sex-based discrimination, 51.6 percent of charges alleged retaliation, and 1.4 percent of charges were brought under the Equal Pay Act.
In the construction setting, employees may have difficulty discerning which company is their legal employer under Title VII. Title VII defines an employer as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such person." In Love v. JP Cullen & Sons, Inc., the Seventh Circuit determined that a general contractor was not the employer of a subcontractor-hired foreman for the purposes of Title VII liability because the general contractor did not control the foreman or provide him with skill-based training and was not responsible for the foreman's costs, payments, and benefits. Further the foreman had no expectation that he would continue to work with the general contractor beyond the build at issue. However, a general contractor may be found to be an employer or a joint-employer of a subcontractor-hired employee where the general contractor directly, jointly, or indirectly controls or supervises the worker, has the power to hire or fire the worker, furnishes the worker's equipment, stores the worker's employment records, and has a long working relationship with the worker. Thus, it is essential for both contractors and subcontractors to encourage a work environment that is free from discrimination, because both contractors and subcontractors may be legally liable for such discrimination.         
One of the most common forms of sex-based discrimination in the workplace is a hostile work environment. Since 1986, courts have held that sexual harassment that creates a hostile work environment is a form of discrimination on the basis of sex and is therefore prohibited by Title VII. In order for an employer to be liable for sexual harassment constituting a hostile work environment, the party filing the lawsuit must establish (1) that she is part of a protected class, (2) the sexual harassment was unwelcome, (3) the harassment was "based on sex," (4) "the harassment affected a term, condition, or privilege of employment," and (5) the employer had notice or constructive notice of the harassment and failed to act. Harassment on the basis of sex "need not be motivated by sexual desire" as long as the harasser "is motivated by a general hostility to the presence of women in the workplace."
Even where an employee is harassed at work, an employer may be able to avoid liability where that employer takes "prompt remedial action" when the complaining employee notifies the employer about the workplace harassment. For example, in Ramos v. Performance Contracting Inc., Ms. Ramos, a construction site laborer, alleged that her foreman often made sexual comments about her, asked questions about her underwear, touched her face, back, and arms without her consent, and "sometimes made moaning sounds while sticking out his tongue in a sexual manner." Even assuming all of Ms. Ramos's claims were true, the court determined Ms. Ramos's hostile work environment claim failed because the employer provided prompt remedial action when he escorted the foreman off of the jobsite on the day Ms. Ramos made her report, never allowed Ms. Ramos and the foreman to work together again, investigated Ms. Ramos's claim, gave the foreman a verbal warning, and retrained the foreman on the employer's sexual harassment policy.
It is imperative employers have a sexual harassment policy, train all employees on this policy, and enforce the policy regardless of the status of the offender. Employers not only have a moral obligation to create and enforce sexual harassment policy, but also a financial incentive to do so. In 2018, the EEOC recovered $56.6 million in monetary benefits for victims of sex-based harassment in the workplace, not including monetary benefits obtained through litigation. The EEOC encourages employers to create a clear and comprehensive harassment policy. Ideally, employers should regularly communicate this policy to all employees. Employers should also post the harassment policy in the workplace as a reminder to employees. A comprehensive sexual harassment policy should include a clear definition and example of prohibited behavior as well as information about how employees can report harassment in the workplace. A harassment reporting system allows the employer to learn of harassment in the workplace, which allows the employer to investigate and address the alleged harassment. Finally, employers should investigate and respond to sexual harassment complaints promptly and appropriately in order to ensure the safety of all employees and to avoid liability for the alleged harassment.
Gender-Specific Personal Protective Equipment
Personal Protective Equipment is equipment that protects employees from hazardous workplace conditions. Federal regulations make the employer responsible for requiring the use of personal protective equipment where employees are exposed to hazardous conditions. While the Code of Federal Regulations does not explicitly mention gender-specific personal protective equipment, employers are required to ensure that equipment like head protection, hearing protection, and face protection are well-fitting, comfortable, and effective. In order to meet federal regulations, employers must ensure female employees have access to properly fitting personal protective equipment, which may require the employer to provide female employees with gender-specific equipment. Improperly fitting personal protective equipment may be hazardous to an employee. For example a female employee wearing gloves that are too large may struggle to lift or carry items. A harness that is too large may increase the risk of "suspension trauma," which is a potentially fatal condition affecting blood circulation in the legs. Thus, employers should increase access to properly fitting, gender-specific personal protective equipment to protect all employees and to comply with federal regulations.
Accommodations for Mothers and Pregnant Women
The Pregnancy Discrimination Act ("Act") prohibits employers from discriminating against employees "on the basis of pregnancy, childbirth, or related medical conditions." The Act also requires employers to treat "women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work." Pregnant workers may allege a workplace policy treats pregnant women differently from other workers who have work limitations and thus constitutes a claim of disparate treatment discrimination. These cases often arise where a pregnant woman requests light-duty work because she is unable to perform all of or part of her job due to a medical condition related to pregnancy. For example, a pregnant employee may need more frequent restroom breaks or may be unable to perform heavy lifting.
In order to bring a disparate treatment pregnancy discrimination claim, one must show that (a) she "belongs to the protected class" of pregnant women, (b) that she requested a workplace accommodation, (c) that her employer did not provide her with an accommodation, and (d) that her employer did "accommodate others similar in their ability or inability to work." The Supreme Court has noted that "others similar in their ability or inability to work" does not require courts to compare the person filing the claim, or plaintiff, to other pregnant employees, but instead requires courts to compare the plaintiff to non-pregnant employees requesting accommodations. An employer may justify the lack of accommodation by showing the "legitimate, nondiscriminatory reasons" the employer denied the accommodation. However, a court will likely determine that convenience and cost are not legitimate and nondiscriminatory reasons to deny an accommodation request. Then, the plaintiff is able to present evidence that the employer's legitimate and nondiscriminatory reason is actually just a pretext for intentional discrimination. In applying this test, the Supreme Court determined the United Postal Service's denial of a reduced lifting accommodation for a pregnant employee should be compared to the employer's accommodations for disabled employees, not just other pregnant employees.
Thus, employers should make good faith efforts to accommodate pregnant employees in a manner consistent to the manner employers accommodate employees with disabilities to avoid liability. Further, studies show that employers who help accommodate employees during pregnancy and early motherhood have higher rates of mothers return to the workforce after maternity leave.
Women in construction may experience adversity in the workplace due to harassment and discrimination based on sex, the unavailability of adequately fitting personal protective equipment, or discrimination based on pregnancy. However, federal laws and regulations provide significant protections to female employees. Increasing awareness of these laws and regulations will make women safer at work and will help employers avoid lawsuits and workplace injuries.  
Construction Law Stephanie U. Eaton