Protect Your Construction Site from Claims of Racism Based on Graffiti and Slurs in the Workplace

In light of the current focus on racial justice in the workplace, the time is right for employers to review their policies and actions to ensure that racial discrimination is not tolerated. In addition to the ethical and legal motivations to rid their workplaces of racial discrimination and harassment, employers need look no further than the $137 million verdict against Tesla for permitting racial harassment in the workplace as the business motivation to continue their fight against racial harassment.

For the construction industry, this fight can be challenging, as their worksites are large and dispersed, their employees are often not closely supervised and their facilities, including restrooms, are often provided by third parties. This means that racial slurs, harassing graffiti, offensive cartoons or drawings might be less visible to supervisors than in an office environment. Nevertheless, construction companies must make and document their efforts to prevent and respond to complaints of racial harassment and discrimination. Failing to do so can be extremely costly.

At construction sites, racial harassment and discrimination can take several common forms, such as direct racial slurs, vandalism, or graffiti directed at a particular person or group. However, it can also manifest itself in a dispersed and non-targeted fashion, such as graffiti in portable restrooms, offensive stickers or patches on helmets and clothing or vandalism on the worksite. It can also include racial slurs used in a “joking” way, in a language other than English, or slurs used among members of one racial group about another group or even about that group itself. Regardless of its form, employers have a duty to respond to complaints, investigate allegations and correct any harassment or discrimination brought to their attention. Employers would also be well advised to proactively patrol their sites and correct any instances of harassment or discrimination and document their efforts to do so.

Though every construction employer doubtless agrees that they should and must combat racial discrimination and harassment, many may rightly protest that even the targeted racial discrimination can be difficult to detect, and non-targeted racism may be nearly impossible to detect or remediate. For example, racist graffiti on a portable restroom may be observed by a supervisor of one company, but another company may own the item and even a third may have the contract for cleaning it. In addition, the general contractor, who has overall responsibility for the site, may be yet a fourth company. Construction sites can present a dizzying array of companies, subcontractors and staffing companies.

To best protect themselves, employers at all levels should look at their policies and procedures. First, handbooks should require that all racist statements, language, graffiti or other harassment be reported immediately. The complaint must be documented and the efforts to remediate it must be as well. If any particular company does not have direct responsibility for a specific situation, any efforts to contact or work with the responsible company should be documented. In the example above, if the supervisor of Company 1 observes the graffiti, the supervisor should be required to report it, and Company 1 should send a letter or email to either the general contractor or the company responsible for the restrooms demanding it be removed. Moreover, any company who has responsibility for certain equipment, items or spaces should incorporate checklists and logs into their daily activities, documenting that spaces were checked on a routine basis. As in the Tesla lawsuit, where many of the allegations centered around the actions of subcontractors and staffing company employees, the actions of even a legally separate and distinct entity can have ramifications for others.

Additionally, general company policies prohibiting harassment and discrimination must be carried to their logical conclusion. Any observed instance of racial harassment or discrimination must be addressed, even if there is no complaint. Racial slurs used in the workplace, regardless of the context, must be addressed and company efforts to stop them must be documented. Remember, a racial slur consensually or jokingly used by one person to another person, even if they both belong to the same racial group the racial slur refers to, may offend another employee, customer or subcontractor, who can easily file a lawsuit.

There is no guarantee that, even if a company follows all the steps mentioned above and vigorously seeks to eradicate racism at the job site, it will be protected from a lawsuit. But it will be in a much better position to respond and defend itself. 

Construction sites often involve many companies and individuals providing a variety of services or equipment. Regardless of any particular company’s role, it is always best to prevent and end harassment and document any efforts to do so. The defense of, “It’s not my job,” did not protect Tesla, and likely won’t protect others in the future.

AALRR has a team of attorneys who specialize in advice and counsel, investigations and litigation concerning discrimination and harassment. If such issues arise, it is important to contact counsel as soon as possible so that you and your business are put in the best position to succeed.