Sexual discrimination has pervaded American industries for decades, and research shows that the construction industry is not immune.
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While dozens of workplace-based sexual misconduct scandals brought the issue of harassment against female workers to the national spotlight last year, the problem is not new. Sexual discrimination has pervaded American industries for decades, and research shows that the construction industry is not immune.

The recent scandals have spurred an important national conversation that includes the home building industry, says Massachusetts attorney Jessica Murphy, chair of the National Association of Women in Construction’s (NAWIC) professional development and education committee. She is developing a NAWIC seminar to educate members and offer resources to help stop workplace harassment. In the multifamily industry, online training provider Grace Hill is offering free courses on strengthening sexual harassment policies to anyone in the industry, following renewed efforts by the U.S. Department of Justice and U.S. Equal Employment Opportunity Commission (EEOC) to prevent and correct harassment.

BUILDER talked to legal and human resources professionals about the components of a comprehensive sexual harassment policy
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Although an “old boys’ club” culture has historically been a deterrent to women in home building, Veronica Ramirez, CEO and president of Houston, Texas-based executive recruiting search firm Joseph Chris Partners, says the situation is improving, whether or not the changes have been spurred by reaction to recent incidents.

“More and more companies are really focused on their people and how they treat their people,” she explains. “There’s an overall improvement in company and individual integrity.”

In light of the national attention on harassment in the workplace, BUILDER talked to legal and human resources professionals about the components of a comprehensive sexual harassment policy. Here are their tips for keeping employees safe and informed, eliminating ambiguity, and avoiding legal risk.

Acknowledge the Issue
In 1999, a landmark study from OSHA reported that 88 percent of women construction workers experience sexual harassment at work compared to 25 percent in the general workforce. To explore whether construction workplace culture has improved since then, OSHA partnered with the National Association of Women in Construction (NAWIC) last year on a survey of 268 NAWIC members. The study indicated that sexism, bullying, and harassment still have a hold on the industry.

Sexism, bullying, and harassment still have a hold on the industry
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The most surprising result of the survey was that many women who said they had not been sexually harassed described incidents that did, by definition, constitute sexual harassment, says Murphy of Worcester, Mass.-based law firm Mirick, O’Connell, DeMallie & Lougee, LLP.

Whether through a physical gesture or comment that crossed the line, “a lot of women feel as though it’s just part of the construction industry,” she says. “A lot of them want to be tough, want to think they can take it, and understand that not everyone’s going to be politically correct at all times. We want to disavow people of that idea. No one should be subject to sexually harassing behavior.”

If You Don’t Have a Policy, Get One
First and foremost, employers who do not already have a sexual harassment policy in place should implement one, says Attorney Amanda Baer of Mirick, O’Connell, DeMallie & Lougee, LLP, because being found liable will cost far more than creating a handbook and training programs. “It’s penny wise and pound foolish not to have these policies and trainings in place,” she explains, since “it’s very difficult to get out of [sexual harassment] cases early and cost effectively.” These cases tend to run long, Baer says, because of the subjectivity that’s involved in a jury’s determination of which party is more credible.

Once a written policy has been drafted, it must be distributed and explained to employees and managers.
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Once a written policy has been drafted, it must be distributed and explained to employees and managers. “All employees should receive a copy of the policy and sign an acknowledgement of receipt,” says Laura Lawless Robertson, partner at law firm Squire Patton Boggs in Phoenix, Ariz.Prudent employers will not only disseminate a policy but also conduct training, at least with members of management (who have a duty to report and take action in the face of harassment allegations), but also with staff so they know what to do if they encounter workplace harassment.”

Provide a Thorough Definition
A sexual harassment policy should include a comprehensive definition of sexual harassment in its two forms, quid pro quo and hostile work environment, Baer says, “with the caveat that each state may have different requirements and specifics.” Quid pro quo sexual harassment, Latin for “this for that,” occurs when a workplace authority offers a promotion or pay raise, for example, in exchange for a sexual favor. Hostile work environment sexual harassment occurs with repeated and unwanted sexual comments, requests, gestures, or other sexually offensive behavior, that unreasonably interferes with work performance by creating an intimidating, hostile, humiliating, or abusive work environment.

Set Up a Reporting Process
When Baer drafts sexual harassment policies, she tends to include the name of two “grievance officers” to whom employees can report their concerns. “I like to make sure they’re individuals that employees feel like they can trust and that have a certain clout within the agency,” she explains.

It’s important to have an alternative individual who can receive complaints
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This is more easily arranged in a large company than a small one, however, according to Robertson. In smaller construction companies, especially those that don’t have a separate HR department, “complaints are typically directed to and investigated (if at all) by the owner/foreman, who may himself or herself be implicated in the allegations or viewed as unapproachable or likely to retaliate,” she says. It’s important to have an alternative individual who can receive complaints, Robertson continues, in case the senior employee is unwilling to take appropriate action or a complaint is made against him or her.

Avoid an Absolute Timeline, But Act Promptly
While a policy’s sexual harassment definition should leave no ambiguity, Baer cautions that it’s best to stay vague with regard to the employer’s investigation timeline. Every complaint should be looked into promptly, she says, but sticking to a predefined window of time is challenging because every case varies in scope and comes with its own set of investigation demands.

Policies do not have to guarantee confidentiality for those who raise claims, Robertson adds. They should, however, emphasize the discretion with which the employer will treat complaints and its commitment to maintaining confidentiality to the extent possible. Policies should also affirm the company’s intention to discipline employees, fairly and across the board, for any violations of policy.

Promote a Culture of Respect
Murphy told BUILDER about a construction business owner who declared he wouldn’t hire women anymore, wanting to avoid the harassment issue entirely and thinking that an all-male staff wouldn’t get him into legal trouble. But the problem could still be occurring, she explains, as employees “could certainly be harassing other tradespeople they work with or customers.” In other words, the only real way to cut down on legal risk is to develop and implement an anti-harassment policy.

 The only real way to cut down on legal risk is to develop and implement an anti-harassment policy.
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By effectively communicating this policy and conducting trainings, employers are killing two birds with one stone, Murphy adds. “The things that employers do to protect themselves are precisely the things I expect are going to create a better working environment for everyone” – a culture of respect and diversity, in which harassment is not tolerated.

“Companies are beginning to recognize the value in including women on their teams," says Murphy. "Diversity brings different experiences, expertise, skills, and viewpoints to a project. That creates a better result. Excluding women from the construction site—either intentionally or as a result of sexual harassment—hurts women, the companies and their customers."