Construction Law

Tell employees to keep possible discriminatory attitudes private

Contractors should instruct workers to keep discriminatory attitudes to themselves on jobsites. In Horne v. Turner Construction Co., a court ruled that a supervisor's statements about a female worker were evidence of discrimination.

Regardless of how you feel about female laborers on the construction site, the best policy is to keep those feelings to yourself. Had a construction company in Miami heeded such advice, it could have possibly avoided a costly lawsuit by a female worker alleging sex discrimination under Title VII of the Civil Rights Act.

In Horne v. Turner Construction Co., No. 04-14775 (11th Cir. June 21, 2005), the defendant construction company hired the plaintiff as an unskilled laborer. Although her duties included cleaning up around the jobsite, she also performed more traditional laborer-type duties such as operating construction equipment, digging ditches, building doors and repairing pipe.

After seven months on the job, a new supervisor was assigned to the site where the plaintiff worked. He brought two of his own skilled carpenters with him and ultimately fired the plaintiff. The plaintiff had been warned to stay out of the new supervisor's way because he "did not like women." In fact, he had been heard saying that "women could not dig or move things as quickly as men and that he preferred to limit women's work to cleaning."

After she was fired, the plaintiff filed suit alleging sexual discrimination. In preparing for the trial, a male co-worker of the plaintiffs testified that the plaintiff's work "was just as good as any of the men on the site." Nevertheless, he agreed with the plaintiff's supervisor that women should not do strenuous work and that they were better suited for cleaning.

When the defendant employer sought to have the case dismissed for lack of evidentiary support, the trial court agreed. The appellate court, however, saw things differently. The Court of Appeals found that the supervisor's statements about women being better cleaners than construction workers was direct evidence of discrimination and was directly attributable to the employer.

It sent the case back to the district court, allowing the plaintiff to have a full trial on her claims.

So, what's the moral of this story© Assuming that you disagree with the notion of women in the construction industry, keep any stereotypical comments about the subject to yourself. And by all means ensure that the message gets communicated to all supervisory personnel because their statements alone - even if you disagree - can bind the company.

FMLA coverage: Not determined "as the crow flies." A Baton Rouge construction company, PCE Constructors Inc., was recently dismissed from a Family and Medical Leave Act (FMLA) case because the Fifth Circuit Court of Appeal found that the plaintiff's medical leave for heart surgery was not covered by the FMLA due to the fact that the employer had less than 50 employees within a 75-mi. radius of the plaintiff's work site.

Did PCE get off on a technicality© Perhaps. But, that's the way the statute is written and you, too, can possibly benefit from the interpretation of the FMLA given by the court in this case.

In Bellum v. PCE Constructors Inc., No. 04-60409 (5th Cir. April 25, 2005), the defendant employer, which is headquartered in Baton Rouge, provides electrical and instrumentation construction services on a project-by-project basis in a number of southern states. The plaintiff in the case was hired by the company to manage a job in Fernwood, Miss.

During the course of the job, the plaintiff took leave for a heart surgery. He claimed that he was continually told by his supervisor that he would have a job when he returned. However, when he returned from leave, he was told that the job was complete, there was no work for him and he was terminated.

When the plaintiff sued the company under the FMLA, the company argued that it did not employ the requisite number of employees within 75 mi. of the jobsite, therefore, the plaintiff's leave was not protected by the FMLA and it had no duty to hold his position while he was out or to return him to equivalent employment.

The FMLA outlines specific factors that determine an employee's eligibility for leave under the act. One of those factors is that the employer must employ at least 50 employees within 75 mi. of the employee's worksite. PCE had 14 employees in its Baton Rouge office and 41 employees at the Fernwood site.

The distance between the two sites was 68 linear mi. However, if the distance was measured over the public roadways, it was 88 mi. Thus, for the plaintiff to be successful on his claim, he needed the court to conclude that the 75 mi. radius should be measured linearly, or "as the crow flies."

The court refused to rely on the crow in this case. Concluding that most U.S. workers rely upon and use surface transportation to travel to and from work, and based upon the Department of Labor's regulation specifying that the 75 mi. distance should be measured by surface miles, using surface transportation over public streets, roads, highways, and waterways by the shortest route from the facility where the employee at issue works, the court rejected the plaintiff's "as the crow flies" argument.

The court ultimately dismissed the case because the employer did not employ 50 employees within 75 surface mi. of its Fernwood jobsite.

Apparently, distance does matter. So, when you are confronted with an FMLA claim or a request for FMLA leave, be sure to first ask yourself whether the employee is covered by the FMLA. That is, whether he/she has worked the requisite number of hours and whether you employ the requisite number of employees within 75 mi. of the employee's work site.