I’m Quoted in Construction Dive’s “The Dotted Line: Why the Amazon noose lawsuit is ‘a big deal’”

A lawsuit alleging Amazon and its contractors fostered a hostile work environment by failing to prevent nooses from appearing at a Connecticut construction site could set a legal example for similar situations in the industry, attorneys say.

“This is a precedent-setting case,” said Kenneth Krayeske, a civil rights lawyer at BBB Attorneys in New Haven, Connecticut, who is not involved in the case. “Factually speaking, this is going to survive a motion to dismiss. I’ll be shocked if it doesn’t.”

The suit centers on the appearance of as many as eight nooses at a jobsite in Windsor, Connecticut, in 2021, where Fairfield, New Jersey-based RC Andersen served as the general contractor and Holliston, Massachusetts-based Wayne J. Griffin Electric was a subcontractor. Both companies, along with Amazon, were named as defendants in the suit.

In the complaint, five Black and Latinx workers make the legal argument that regardless of who placed those nooses, the owners and contractors that ultimately controlled the site failed to take appropriate actions to prevent them from appearing in their workplace. That, in turn, subjected those workers to a hostile work environment at the hands of the employers, the suit claims.

The suit also asserts retaliation against the workers of color after they reported the nooses. RC Andersen and Griffin supervisors told law enforcement investigators the plaintiffs planted the nooses themselves, according to the suit, in order to get transferred off the job to a higher-paying project nearby.

Amazon, RC Andersen and Wayne J. Griffin Electric did not immediately respond to requests for comment. Court filings thus far in the case have centered around attorney appearances, establishing filing deadlines and procedures for submitting notices; no trial date has been set.

A high-profile case

The case could be significant, given the prevalence of nooses appearing on construction jobsites across the country. When it was filed Sept. 29, observers in the industry immediately took notice.

“That’s a big deal,” said Peter Davoren, CEO of New York-based Turner Construction, the largest commercial contractor in the industry by revenue, who is also outspoken about eliminating bias-motivated events from jobsites. “We’re all responsible.”

Lawyers not involved in the litigation told Construction Dive it’s also a somewhat unique legal approach, in that it attempts to stop the buck at an employer’s door for actions allegedly taken by employees.

“It’s a novel approach in that if you were a dental hygienist and you walked into your office and somebody had scrawled a swastika on the countertop, you would expect the dentist — your boss — to protect you from that,” Krayeske said. “This is the same thing, but it involves a contractor and coming into a work site.”

Indemnification and joint liability

The lawsuit also attempts to hold the site’s owner – Amazon – accountable for what happened on its property. While that’s a common approach in employment law, it could intersect with the unique provisions of construction contracts, which typically are rife with indemnification clauses that try to shield parties — especially owners and prime contractors — from the faults committed by others.

“Generally speaking, you can go for joint liability against multiple parties — Amazon and the contractors,” said Charles Krugel, an employment law attorney in Chicago who typically represents employers. “But you would have to look to see what type of agreement there is between Amazon and the contractors regarding who’s liable.”

On that front, construction attorney Carol Sigmond at Greenspoon Marder in New York City said Amazon is in a stronger legal position.

 

“I think Amazon is the least likely party in this case to be held liable,” Sigmond said. “I think Andersen and Griffin have more problems, because they control the site.”

Further, if the retaliation claim that supervisors pointed law enforcement officials to the workers themselves is proven, that could be even more worrisome for the contractors.

“The mere fact that they said, ‘Look at the Black workers,’ is that in and of itself racist?” Sigmond said. “That, to me, is the question that’s screaming to be asked.”

While nooses appearing on the jobsite is problematic for the contractors, it doesn’t necessarily constitute liability for a hostile work environment, she said.

“You don’t have to be perfect as an employer, you’re allowed to make mistakes,” Sigmond said. “But you’ve got to make a good faith effort.” In other words, it’s how the contractors reacted to the appearance of nooses that would likely be significant at trial, Sigmond said.

A broader shift

After the initial nooses were found, the contractors notified law enforcement and offered a $100,000 reward for information identifying the culprits. The FBI investigated the case as a hate crime, and one of its agents questioned the workers who found the nooses. The site was also at least partially shut down so cameras could be installed for surveillance and security.

But those actions may not be enough to show that the contractors were taking the situation seriously, attorneys said. The suit alleges the cameras were never turned on and were only placed in doors and hallways, not in areas where the nooses had been found.

The suit speaks to the broader shift in the workplace where anti-harassment guidelines are increasingly becoming more employee-centric, according to Trent Cotney, a construction attorney at Adams and Reese in Tampa, Florida. 

The Equal Employment Opportunity Commission — the federal agency charged with policing discrimination at work — in September proposed updated guidance for workplace harassment and signaled it would look more closely at evidence of systemic discrimination.

“What every contractor needs to take away from this case is you have got to have a very strong employee manual that contains a very strong anti-harassment policy,” Cotney said. “Within that policy, you have to have a due process complaint procedure that allows the party or parties that are affected to have a voice.”

That procedure should include designating multiple points of contact for employees to voice concerns to, including anonymously and to people who aren’t directly involved in the situation, Cotney said.

Once that policy and handbook are created, in order to demonstrate that an employer does have good faith in this area, contractors should then make sure they’re put into practice. Much like safety training is emphasized at jobsites, so should be harassment training, Cotney said.

“It doesn’t matter how well written your employee manual and your anti-harassment policies are if you don’t have ongoing training to really hit those home,” Cotney said. “All of that gives you a much stronger defense.”