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Construction Men Find Refuge in Sexual Harassment Laws

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SPECIAL REPORT Although the federal government’s role in suing construction companies over sexual harassment has fallen steadily over the last decade, federal and local complaints linked to similar harassment of male employees have remained consistent and higher than that for all industries.

Between 20% and 25% of complaints brought against construction companies over the past 10 years by the U.S. Equal Employment Opportunity Commission involve a harassment claim by a man, according to data provided to ENR (see interactive graphic below).

It is not clear whether on-the-job sexual harassment has declined as companies became aware of the problem and the risks, or whether the complaints and civil lawsuits are now being handled mainly by private attorneys hired by the victims, which would not appear in EEOC statistics.

What is clear is that anti-sexual harassment measures serve as a refuge for men to a greater degree than anyone could have anticipated.

As usual, the legal definition of sexual harassment—usually phrased as a hostile work environment—remains in flux.

Earlier this month, EEOC lost a key court decision involving a male victim in the construction industry when the Fifth Circuit Court of Appeals in New Orleans ruled that what ironworker Kerry Woods experienced from his supervisor at Boh Bros. Construction Co. while working on a Louisiana bridge project did not qualify as “sexual harassment” or “sex discrimination.”

Woods, represented by the agency, won a $301,000 award last year from a federal jury after he complained about constant sexually phrased taunts impugning his masculinity during work on the span in 2006.

Gregory Juge, the EEOC official responsible for pressing the case on Woods’ behalf, declined to comment on the verdict or whether the agency would seek review by the U.S. Supreme Court.

Awareness of sexual harassment has grown dramatically since the early 1970s, when issues related to women’s rights became part of the national conversation. Male-dominated construction jobsites have posed a particular challenge, with female craft workers in the past enduring the full range of verbal and physical abuse. Partly as a result, women represent a small percentage of construction craft labor—a level that has hardly budged despite efforts to attract women to the field through union and open-shop apprenticeship training programs and a crackdown by  management against abusive employees.

But one labor attorney says he believes the drop-off in EEOC complaints is misleading and that the number of cases he sees has remained constant in the last decade.

Michael Hoare, a Washington, D.C., attorney who represented former J.A. Jones/Tompkins Builders Inc. executive Sandra Fowler in her successful sexual harassment suit against the firm in 2006, says the numbers do not reflect what he sees in lawsuits within all industries. “[The rate of sexual harassment suits] seems to be steady and we keep expecting it to fall off, but there's no diminution,” he says.

Hoare is also surprised at the rise of sexual harassment suits brought by men. “At one point we never heard of them,” he says, but such cases now represent 10% of his office's work.

EEOC sexual harassment complaints for all industries have tailed off in the last decade, but the drop is more dramatic in construction: 345 construction industry complaints in 2002 fell to 99 in 2011, a 70% decrease. The proportion of complaints in the construction industry filed by men—19% in 2011, 27% the year before—is higher than the proportion filed by men in all sectors combined, which was only 16% last year.

EEOC spokesman James Ryan says that the commission's policy prevents him from speculating on causes for the decline of sexual harassment complaints.

Traditionally male industry

“Discrimination is discrimination,” he said in an email. “Sexual harassment is sexual harassment, and it’s all illegal. It doesn’t matter whether a workplace or an industry is considered by some – whether accurately or not – to be 'traditionally male' or 'old-school,' or, for that matter, female-oriented, whatever any of those characterizations might mean. Employees don’t lose their legal rights to be treated with dignity at the workplace – and the EEOC will not look the other way – just because of the supposed social culture of the employer or the business.”

Most complaints brought to EEOC, or locally through a state-based fair employment practices agency, are resolved through conciliation. Last year, fewer than five construction industry sexual harassment complaints to EEOC or a related state agency resulted in a lawsuit.

Of complaints that become lawsuits, a majority are settled out of court. In 2011, Kennesaw, Ga.-based Brand Energy and Infrastructure Services paid $110,000 to settle a sexual harassment and retaliation suit brought by EEOC.

An EEOC press release quotes the complainant, a former Brand employee named Jauronice Hayes, as saying, “No woman should have to choose between putting up with this kind of abuse or losing her job and not being able to support her family. I could not stand the idea that the company or this man might do this again to someone else. I felt that if I did not stand up for myself, I would be letting others down and setting a bad example for my kids.”

EEOC's statistics reflect only its own data regarding complaints brought to a federal or local office and handled by the agency's attorneys. The data also do not reflect sexual harassment lawsuits brought through private legal representation. Additionally, EEOC statistics for the construction industry category reflect the industry sector classification of the company or organization complained against, even though the complainant may be an employee of a unit classified in a different industry. EEOC keeps confidential the details of all cases not resulting in legal action, which hinders more thorough analysis of trends.

Hoare adds that every year he hopes for a decrease in cases as a result of publicity surrounding the successful lawsuits. “Unfortunately,” he says, “it's always a problem.”

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