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Which industries are exempt from anti-discrimination laws?

By Mindy Chapman, Esq., Mindy Chapman & Associates
5/8/2008 - 4:00pm
Discrimination & Harassment

Mindy Chapman, Esq., Mindy Chapman & Associates

Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law monthly newsletter. She is highly regarded for her workplace compliance training that “clicks and sticks,” because it is practical and memorable. She is also the coauthor of the American Bar Association’s bestseller and authority on civil rights training, “Case Dismissed! Taking Your Harassment Prevention Training to Trial."

The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally. She has trained extensively in all industries at all levels of the workforce—from boardroom executives to managers and supervisors and to hourly employees in union and non-union environments.

View all articles by Mindy Chapman, Esq., Mindy Chapman & Associates

That’s a trick question. The answer is none. Still, courts hear it all the time. “We’re an exception to harassment/discrimination laws because … We’re in a gritty industry …We’re doctors …. We have an extra-friendly workplace.” Whatever. One company just wrote a $1.5 million check trying that defense. It doesn’t work in 2008.

Case In Point: A group of black employees complained that they were subjected to racial harassment from co-workers at a power plant construction project in Massachusetts. The workers complained of racist graffiti, demeaning language and having their tools stolen.

The employees complained to the on-site project management team. But no action was taken and the graffiti was allowed to remain. Then it got worse. The complainers soon faced retaliation and eventually were fired.

The black employees filed a race discrimination and retaliation claim with the EEOC. The employer tried to shrug it off because construction sites are rough-and-tumble workplace. (EEOC v. Washington Group Int’l Inc., consent decree approved 3/17/08)

How did this case end … and what lessons can be learned?

The company eventually settled the case, distributing $1.5 million to about 20 employees. The EEOC warned that, “Even though a construction site may be viewed by some as a ‘rough and tumble’ workplace, discrimination is unlawful regardless of the job site. It doesn’t matter whether employees work behind a computer or behind a forklift.”

Ouch! In addition to writing the big check, the company must conduct anti-discrimination training, change its policies and procedures, post notices about the settlement at construction sites and be monitored by the EEOC for two years.

Double ouch! The EEOC also created a press release about the settlement and posted it on its Web site for all to see. What once was local news for newspaper readers is now available for the world to read in real time, all the time. Search engines will now always post the EEOC story when someone does a search on the company. That’s not the kind of press release any company can afford to have out there, even if they can afford to pay a settlement and the cost of defense.

Employers must be particularly aware of racial discrimination, the number one type of job-bias complaint in America. The EEOC has raised public awareness of race bias recently through its E-Race initiative.

3 Lessons Learned … Without Having to Go to Court

1. There are NO industry exceptions. I hear this misconception in my training all the time. But the EEOC clarified it for those who still don’t get it in 2008: There are no industry exceptions to harassment and discrimination laws. If that’s the best legal defense your attorney can use in court, you’re in trouble.

2. Train now, or be forced to train. Employers must train their managers and supervisors about their legal obligations. If you don’t do it proactively, you’ll be forced to do it with a lot of worldwide negative publicity. Don’t forget to train all employees on your policy. Everyone should know what conduct is acceptable and what is prohibited—plus the consequences for violating the policy.

3. Tie your policies to performance. Managers and supervisors who do not stop the conduct and immediately report it should suffer employment consequences themselves. They must also monitor the workplace for graffiti, e-mails, cartoons etc. and immediately remove such items as soon as they see them. Next week is too late—the EEOC may have the case on its desk by then.