EEOC Releases Guidance on Employment Discrimination in Construction

By: Bill Osterndorf

The Equal Employment Opportunity Commission (EEOC) has released guidance to help prevent employment discrimination in the construction industry. A document containing this guidance entitled “Combating Employment Discrimination in Construction” can be found on EEOC’s website. The guidance was developed as part of EEOC’s strategic enforcement plan for fiscal years 2024-2028. 

In the last two years, EEOC has released two other documents that provide guidance for the construction industry. 

• EEOC Chair Charlotte Burrows released a report entitled “Building for the Future: Advancing Equal Employment Opportunity in the Construction Industry” in 2023. The report focused on the ways in which women and people of color in construction positions were the subject of discrimination and harassment.
• EEOC released a follow-up report entitled “Promising Practices for Preventing Harassment in the Construction Industry” in 2024. This report recommended key actions that the construction industry was encouraged to take to prevent harassment and discrimination.
  

In releasing its most recent guidance, EEOC spent time gathering input from a variety of employee groups, employer representatives, and other stakeholders. 

Recent Litigation by EEOC 

There were a number of areas where EEOC has focused its enforcement efforts in regard to construction that are outlined in the agency’s latest guidance. These include: 

• Preventing racial harassment and retaliation
• Preventing harassment and retaliation based on race and national origin 
• Stopping the refusal to hire women 
• Preventing sexual harassment 

Anti-Discrimination Agencies Continue Focus on Construction Industry 

Both EEOC and the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) have pledged to be more involved in preventing discrimination in the construction industry. OFCCP has a variety of initiatives specifically aimed at more effectively enforcing the affirmative action and equal opportunity requirements faced by construction companies that receive federal funding. Among these initiatives are the following: 

• OFCCP has made revisions to the letter that begins compliance reviews of construction companies so that the letter now demands far more information from employers.
• OFCCP is requiring that construction companies involved in a federal project provide payroll information on a monthly basis. 
• OFCCP has programs in place to monitor mega construction projects and the various construction companies that may be involved in these projects, including plans to conduct compliance reviews of at least 40 megaprojects. 
• After years of neglecting the construction industry, OFCCP has conducted compliance reviews involving hundreds of construction companies in the last two years.  

The focus by both EEOC and OFCCP is spurred in part by the massive infrastructure spending bills passed by the Biden Administration. The federal government is expected to continue ramping up these projects in the next few years. 

DCI will continue to monitor efforts by EEOC and OFCCP to regulate the construction industry.