At construction sites, racial harassment and discrimination can take several common forms such as graffiti, direct racial slurs, or vandalism directed at a particular person or group.

In light of the ongoing focus on racial justice in the workplace, ECA member law firm Atkinson, Andelson, Loya Ruud & Romo (AALRR) suggest that employers review their policies and actions to ensure that racial discrimination is not tolerated.

Racial discrimination 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.

However, racial discrimination can sometimes 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.

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 worksites are large and dispersed, employees are often not closely supervised and 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.

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.

AALRR recommends that 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. Any observed instance of racial harassment or discrimination must be addressed, even if there is no complaint.

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.