Employment Law Daily Supervising company may be liable for harassment of female construction worker
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Tuesday, December 12, 2017

Supervising company may be liable for harassment of female construction worker

By Lorene D. Park, J.D.

Denying a motion to dismiss sexual harassment claims by a female construction worker whose coworker harassed her and took pictures of her while she was using a porta-john, a federal district court in New York found that she plausibly alleged the company who oversaw work at the site was her “joint employer” considering evidence of its control over day-to-day work, direct supervision, and discipline of the subcontractor’s employees, including the plaintiff. She also sufficiently alleged that the defendant did not respond adequately to her complaints (Salvat v. Construction Resources Corp., December 7, 2017, Caproni, V.).

Porta-john pics. Hired in July 2016, the female ironworker worked at a construction jobsite for which Empire Outlet Builders was the general contractor. Empire hired Construction Resources Corp. as its subcontractor and LPC as its construction manager. According to the plaintiff, from the beginning of her time at the jobsite, a coworker sexually harassed her. She reported his explicit comments to the shop steward and others and, a week later, the coworker followed her to a porta-john at the jobsite and began banging on the door. The lock on the porta-john was broken and she had to brace herself against the door to prevent him from opening it while she was using the bathroom. The coworker then pushed his phone through a broken vent and took pictures of her while she was on the toilet. Thereafter he tried to blackmail her with the pictures.

Complaint and empty reassurances. The plaintiff reported the porta-john incident to the site’s safety manager and an LPC supervisor. This was not the first time the plaintiff had complained to management. She had complained about the lack of a female-only bathroom at the site, and then about the broken lock and vents once the porta-john was provided for her use. In response to her report about the coworker, the site supervisors met with the plaintiff and promised to provide her with a “safe and secure” bathroom facility and to terminate the alleged harasser. However, he was not terminated and continued to work at the jobsite.

Plaintiff fired, files suit. Shortly after the meeting, the plaintiff was fired, allegedly for performance reasons though she claimed it was in retaliation for her complaints. She filed suit for sexual harassment, discrimination, and retaliation, among other claims, naming as defendants the three companies involved with the construction job as well as the harasser. The company that functioned as construction manager, LPC, filed a motion to dismiss, arguing that it was not the plaintiff’s “employer” under Title VII and that it took reasonable steps to address her complaints.

Sufficiently alleged “employer” status. Denying the motion, the court found that the plaintiff “adequately, albeit barely, alleged that LPC was her employer pursuant to the ‘joint employer’ doctrine.” Specifically, she attached a copy of the subcontractor agreement between Construction Resources Corp. (CRC) and Empire and alleged that under the agreement LPC had the authority to supervise CRC and its employees, including the plaintiff. LPC would, among other things, inform CRC’s “foreman/lead man, on a daily basis, as to the location of the work and the tasks to be performed.” The plaintiff also alleged that the LPC supervisor called a meeting in response to her complaints about the coworker and porta-john incident and was involved in a follow-up meeting with her union and CRC. In addition, she claimed a more senior LPC superintendent was involved in a meeting with the coworker.

In the court’s view, these allegations were relevant to three of the joint-employment factors: control over hiring and firing, disciplinary procedures, and direct supervision of employees. Though LPC argued that the employee’s EEOC charge only blamed CRC for the porta-john incident, the court pointed out that the employee did name LPC in the EEOC charge so she did not appear to hold CRC “solely” responsible.

The employee also plausibly alleged that LPC failed to respond adequately to her complaints. For one thing, she claimed she had complained to LPC about inadequate bathroom facilities before the porta-john incident and other harassment and that all the defendants failed to address the issue adequately. Also, it could be inferred from the LPC supervisor’s participation in union meetings that he had at least some role in determining how to address the situation with the coworker.

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