Preventing Workplace Misconduct: A Leadership Imperative

The culture of construction has been described as one that perpetuates racism, discrimination, and sexual harassment. In fact, it may take a fleet of excavators to dig the industry out of the hole it is in with the U.S. Equal Employment Opportunity Commission (EEOC). 

This article presents risks, reasons, and recommendations to help industry leaders take a stand against workplace misconduct, transform the culture, and protect people, reputations, and profits.

Growing Risks of Workplace Misconduct

Organizations are being pushed internally and externally to take action against workplace misconduct. As employees find their voices, they are also finding courage to file complaints and claims. The growing risks of workplace misconduct can no longer be ignored, including:

  • “Damage to company culture where trust can quickly erode and turn into us vs. them conflict.
  • Reputation risk that can hurt the company’s efforts in recruiting and retaining top talent and jeopardize relationships with owners, financiers, subcontractors, and suppliers.
  • Profit loss from legal defense costs during prelitigation discovery and negotiated settlements or legal judgments, as well as indirect costs associated with lost productivity due to investigations, depositions, negotiations, arbitrations, or trials.”1


EEOC Enforcement Targets Construction

On May 17, 2022, the EEOC held a hearing to address the ongoing, severe, and prevalent discrimination in the construction industry, especially against women and people of color.2 The hearing was ultimately a step in the right direction, as light was shed on innovative practices to address discrimination and provide a welcoming and inclusive environment for all.

Related to this hearing, EEOC Chair Charlotte A. Burrows stated, “The construction sector has always been an important component of the American economy.” As a major employer of the U.S. workforce, it provides a pathway to prosperity and security and is a key indicator of the nation’s health.

“Unfortunately, many women and people of color have either been shut out of construction jobs or face discrimination that limits their ability to thrive in these careers,” said Burrows.

She pointed out further, “Discrimination and harassment in construction can be especially harsh and virulent, including displays of nooses; threats and physical harassment; and sometimes physical or sexual assaults. Yet often workers do not know where to go to seek help.”3

As part of the EEOC hearing, Kenneth D. Simonson, Chief Economist of the Associated General Contractors of America, also called on construction associations and member companies to invest in career funding and technical education to produce more students and jobseekers for the trades.4

Ethics Sets the Bar Higher for Expectations & Performance

A growing number of construction companies are addressing workplace conduct from the lenses of ethics and compliance under the auspices of the environmental, social, and governance (ESG) framework. Ethics and compliance policies, procedures, and protocols fall within the scope of governance.

Employees must be aware of company policies and standards, agreeing to maintain a high level of character. To sustain compliance, ongoing toolbox talks with frontline workers and advanced training for managers is necessary. If a complaint occurs, then records should be kept of the incident for tracking purposes.

Employment legal counsel can provide specific guidance on how to document alleged and actual incidents of workplace misconduct. It is important for employers to be able to demonstrate that a reported incident was thoroughly investigated on a timely basis and that appropriate and corrective actions were taken to sufficiently address the matter.

In getting back to the basics, the golden rule to “treat others the way you’d like to be treated” is a must for social considerations and concerns. As the workplace becomes more diverse and workers span several generations, employers must adopt their social determinants. Millennials and Gen Z employees have opened a door to a more diverse and inclusive workplace.5

Independent Third-Party Investigations Reduce Bias

The handling of any investigation is important, especially toward the resolution of workplace grievances. Therefore, contractors have begun to develop playbooks or toolkits, which include anti- bias clauses, language for contracts with subcontractors, and strong indemnification provisions.

For example, Construction Dive highlighted the strong strides initiated by Turner Construction in 2020 to prevent workplace misconduct on project sites. Included in Turner’s Bias Toolkit is “sample contract language emphasizing its stance against harassment based on race, sex, gender, transgender status, sexual orientation, and several other protected classes, including marital status, disability, and pregnancy. It also has a section binding subcontractors to the policy as an obligation of the overall contract, with any failure to do so justifiable grounds for breach.”6 Its implementation seems to be effective, as bias-motivated incidents dropped from 75 in 2021 to 23 as of mid-October 2022.

While some organizations may rely on their HR team, risk manager, or CFO to handle allegations or actual complaints, others push to use internal general council; however, organizations that deploy a third-party often experience an increase in employee satisfaction and productivity. Due to a hyper-focused model, third-party investigations can occur in less than one week, promoting a better culture and increased productivity and profitability.

When considering retaining the services of a third-party investigative service provider, important considerations include the experience of the firm and its professional staff in conducting EEOC and employment investigations. Additional considerations include the timeliness of the initial response of allegations, the average timeline for completing investigations, and record of resolving cases without subsequent EEOC findings leading to penalties, settlements, or litigation.

Steps Employers Can Take to Reduce Risks of Workplace Misconduct

As the industry looks toward reducing workplace misconduct, here are some recommended steps contractors can take.

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