It’s no surprise that women are underrepresented in the construction industry. The latest statistics published by the U.S. Bureau of Labor Statistics reveal that women make up about 10 percent of the workers in the industry. Employers in the construction industry have made significant progress toward creating safe and productive workplaces, but the lack of women in the industry and on jobsites, combined with an increased focus on discrimination, harassment, and sexual violence faced by women at work, should cause all employers in the construction industry to take notice and review their policies and procedures.

The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing federal laws prohibiting employment discrimination, is paying particular attention to what it believes is “severe and pervasive” discrimination in the construction sector directed towards women and people of color. In May of 2022, the EEOC held a hearing to discuss discriminatory practices in the construction industry and has, since then, filed several lawsuits against construction industry employers in a targeted attempt to shine the spotlight on the industry.

In addition to increased scrutiny by the EEOC, the last few years have seen several new state and federal laws focused on improving working conditions for women and increasing gender equality in the workplace.

For example, under Oregon’s Workplace Fairness Act, every employer, regardless of size, must now have a written discrimination and harassment policy. The policy must provide a mechanism for employees to make a complaint, must identify one primary and one alternate individual designated to receive complaints, must inform employees of the five-year statute of limitations applicable to a legal claim, and must advise employees to document any incident of illegal conduct. The Act also makes it unlawful to prevent current and former employees from discussing allegations of unlawful harassment or discrimination that occur in the workplace or at work-related events through nondisclosure and nondisparagement agreements. Confidentiality is only permissible if requested by the employee.

The Oregon Equal Pay Act is designed to promote pay equity based on sex and other protected classes such as race, color, religion, sexual orientation, national origin, marital status, veteran status, or disability. Under the Act, employees performing comparable work must receive equal pay unless the difference is based on a seniority system, a merit system, a system that measures earnings by quantity or quality of production, including piece-rate work, workplace location, travel, education, training, or experience. Moreover, comparable work involves work that requires substantially similar knowledge, skill, effort, responsibility, and working conditions in the performance of work, regardless of job description or job title. Construction industry employers should analyze any potential pay disparity between men and women (and other protected classes) working in comparable jobs and should take steps to remedy any potential disparity that cannot be explained by a legally permissible factor.

Two new federal laws enacted in 2022 expand protections for pregnant workers. The Pregnant Workers Fairness Act, which goes into effect on June 27, 2023, gives workers the right to receive reasonable accommodations, like light duty, breaks, or a stool to sit on, for pregnancy, childbirth recovery, and related medical conditions, including lactation, unless it would be an undue hardship on the employer. The Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act expands breastfeeding accommodations to exempt employees.

Finally, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act preserves an employee’s right to litigate sexual assault and/or sexual harassment claims in court making pre-dispute arbitration agreements optional for these claims.

While employers in the construction industry have made great strides in ensuring workplace safety and equality, they can and should take further steps to prevent gender inequality, which may lead to sex-based discrimination and/or harassment claims. First and foremost, it’s important to implement policies and procedures designed to prevent, detect, and remedy unlawful harassment. Second, it’s important to train all employees on appropriate behavior in the workplace. Third, it’s important to take complaints seriously, to investigate them, and to implement corrective action designed to end harassment. Finally, it’s important to review your hiring practices, opportunities for promotion, and pay for women in the workforce. Although there are no guarantees when it comes to litigation, being proactive will help prevent and defend costly litigation.

April L. Fredrickson is a partner with Miller Nash LLP and represents public and private employers throughout Oregon and Washington in all areas of labor and employment law. She advises clients on a broad range of workplace and employment issues, including employment policies and practices, state and federal leave laws, wage and hour compliance, disability accommodation, employment discrimination, harassment and retaliation claims, predictive scheduling compliance, and employee discipline and termination. April can be reached by phone at 503-205-2536 or by email at april.fredrickson@millernash.com.

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By ANDREW SELSKY
Associated Press

SALEM, Ore. (AP) — Greg Evans, a Black man who joined a parade of witnesses urging Oregon lawmakers to ban the display of nooses, said the issue was personal for him: A member of his family had been lynched over a century ago in South Carolina.

“He was killed basically for offending a white man,” Evans, a member of the Eugene City Council, testified Tuesday. “He was hung by a noose. His body was riddled with bullets, and then he was set on fire.”

Louisiana, Virginia, California, New York, Maryland and Connecticut previously criminalized the display of nooses. The bill under consideration in Oregon would make intimidation by display of a noose a misdemeanor punishable by up to a year in prison and a $6,250 fine.

In Virginia, displaying a noose in public places is now a felony, with a maximum prison term of five years. The state Supreme Court, ruling in the case of a man who hung a life-sized, black mannequin in his front yard, said in 2018 that the law also applies to private property. Two Black families lived in the neighborhood, including one next door.

Last month, a noose was placed on the recycling container of a mixed-race couple in Eugene, Oregon, and their car was spray-painted with a racial epithet, Evans said in an interview. He believes most people who place nooses are fully aware of the pain it causes Black people.

“Some are just kids that are ignorant, that are playing a joke,” Evans said. “But it’s not a joke. It’s not a prank. This is serious business.”

Federal hate crime laws do not address nooses. Amendments were introduced in Congress years ago to specifically include them as an intimidation threat, but nothing has been passed.

In a 2017 report, the nonprofit Equal Justice Initiative described lynchings and the trauma they caused.

“During the period between the Civil War and World War II, thousands of African Americans were lynched in the United States,” the report said. “Lynchings were violent and public acts of torture that traumatized Black people throughout the country and were largely tolerated by state and federal officials.”

In 2018, the Equal Justice Initiative, which is committed to challenging racial and economic injustice, opened the National Memorial for Peace and Justice in Montgomery, Alabama. It bears the names of lynching victims, but Evan’s ancestor is not among them. He was one of the uncounted lynching victims whose deaths weren’t recorded by officials or newspapers.

Walter Graham was only a teenager when white men dragged him from his home in Blacksburg, South Carolina, in 1915, Evans said, recounting the story passed down by three generations of his family. After killing Graham, the mob burned down the home of the extended family. A short while later, they joined an exodus of Black people terrified by the epidemic of lynching.

The Equal Justice Initiative says “terror lynchings” fueled the mass migration of millions of Black people from the South throughout the first half of the 20th century. It documented 4,084 racial terror lynchings in 12 Southern states. The NAACP says it knows of 700 more.

In 1918, a mob killed Hayes Turner, suspected in the death of an abusive plantation owner. When the victim’s wife, Mary Turner, publicly opposed the killing of her husband and threatened to have members of the mob arrested, she was doused in gasoline, dangled from a bridge and set on fire.

“Turner was still alive when a member of the mob split her abdomen open with a knife and her unborn child fell on the ground. The baby was stomped and crushed as it fell to the ground,” the NAACP said.

Evans said the noose is a symbol of white supremacy that conveys the message: “The white man is still in charge, and remember your place in this society.”

One of the witnesses at the hearing Tuesday for the Oregon bill described the effect of the placement of a noose last May at a Portland State University construction site.

“It was shocking and terrorizing for our community. Staff and faculty were not only afraid to go to our new building but were afraid to attend PSU in general,” faculty member Kelly Cutler told the Oregon Senate Committee on Judiciary.

Portland Mayor Ted Wheeler and city commissioners urged the committee to support the bill, saying it “opens the door for legal remedies” against intimidating people with nooses in Oregon, where records show hate crimes and bias incidents increased 366% in 2020.

“The harm to communities impacted by the display of a noose should not be understated,” the city leaders wrote.

A Republican on the judiciary committee, Sen. Dallas Heard, who is white, asked how the state would enforce an anti-noose law if antifa protesters came to the Oregon State Capitol and hanged his effigy, under a First Amendment right to protest.

The committee chairman suggested Heard speak to legislative counsel to get clarity.

Associated Press reporter Colleen Long in Washington, D.C., also contributed to this report.

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In May, when a noose was found at the 4th and Montgomery project in downtown Portland, executives at general contractor Andersen Construction remained unaware of the racial intimidation incident for weeks.

When the noose was discovered at the construction site on May 20, an employee of subcontractor TCM Corp. brought the matter to her foreman, who said he would discuss it at that day’s foremen’s meeting but didn’t do so. The employee also notified her union, but nothing came of that.

It wasn’t until 20 days later that Andersen executives became aware of the incident from a Facebook post by an employee of another subcontractor, Cherry City Electric, Andersen CEO Joel Andersen said this week.

“I was dejected, embarrassed, frustrated by all of it,” Andersen said during an industry Zoom call Tuesday. “Every safeguard along the way failed.”

Andersen Construction is now leading an effort to fight hate crimes and racial bias in the construction industry. Called Safe From Hate, the effort envisions contractors sharing best practices and embracing zero-tolerance policies.

Andersen Construction would have launched an immediate investigation if it had been notified of the incident, Andersen said. When Andersen became aware of the noose incident on June 9, the company filed a police report and started internal and third-party investigations.

Andersen is organizing the effort in conjunction with construction industry peers. Many of the industry’s heavy-hitting Portland executives took part in Tuesday’s Zoom meeting, including Hoffman Construction CEO David Drinkward, Colas Construction President Andrew Colas, P & C Construction President Steve Malany, Lease Crutcher Lewis President Matt Pearson and Walsh Construction President Matt Leeding.

The program has four “pillars” — zero tolerance, education, recruitment and advancement. Supporters said they hope that Portland’s construction industry — big enough to matter, but small enough to have tight-knit relationships — could become a national model for anti-bias and diversity efforts.

Industry groups such as the National Association of Minority Contractors of Oregon and Associated General Contractors Oregon-Columbia chapter are also involved.

“It’s time to walk the walk,” Drinkward said. “It’s not just putting some paper up on the wall.”

Safe From Hate supporters acknowledged they have a long road ahead.

“It’s no small thing, and it’s going to be the work of the better part of our careers,” Andersen said.

One of the program’s goals is to ensure that “if someone is committing a racist or sexist act — an act of bigotry of some kind — that that’s not going to be accepted, that that’s going to be elevated immediately to the top of the project, to the tops of the organizations,” Andersen said.

Colas said his company, the largest Black-owned construction firm in Oregon, has long dealt with racism.

“It’s not the first time a noose has been hung on a job site,” he said. “These things happen more often than people would think.”

Colas said widening recruitment will lead to a more diverse workforce. Safe From Hate is working to build a website and put forth a pledge that companies can make. The group plans to hold regular meetings in 2021.

“It’s a long journey,” Colas said. “It’s not going to change overnight. But every day we can get better.”

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