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Legal - Three steps employers can take to protect Latino and immigrant workers from discrimination

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SAN ANTONIO - The Bureau of Labor Statistics estimates that Latinos make up 29 percent of construction workers in the United States. This percentage varies from state to state, with Latinos likely comprising more than 50 percent of construction workers in Texas. (The Center for Construction Research and Training estimates 55 percent). Other studies estimate that immigrants comprise about 25 percent of construction workers nationwide and 41 percent in Texas, with most having emigrated from Mexico.


    These figures – in combination with general shortages in skilled construction workers – underscore the importance of construction companies’ efforts to recruit and retain Latino workers.
    The National Discussion on Immigration
Immigration from Latin-American countries became a key talking point during the 2016 election and in this year’s mid-term political campaigns, and employers report an increase in enforcement efforts this year. This national discussion highlights the need for employers to continue non-discrimination efforts in the workplace.
    In 2017, survey results indicated that about a third of Latinos reported experiencing discrimination in workplace situations (applications, equal pay and promotions). This sentiment has steadily increased since the early 2000s (in 2002, Rutgers University found that 22 percent of Latino workers reported experiencing race-based unfair treatment).
    Some suggest the trends are related not only to national discussions on immigration, but also to an incorrect assumption that discrimination is permitted against certain groups. To the contrary, Title VII of the Civil Rights Act of 1964 prohibits discrimination based on both race and national origin (including a person’s or ancestor’s place of birth), and the Immigration and Nationality Act prohibits discrimination against non-citizens authorized to work in the United States.
    Steps for Creating an Inclusive Workplace
    Employers can take three simple steps to implement these laws and create an inclusive workplace: create and enforce anti-discrimination policies; provide effective training; and promptly investigate reports.
    Policies. Strong, clear policies set out expectations for workplace behavior and communicate how seriously you treat this subject. Policies should define discrimination and harassment (providing clear examples) and state consequences for violations. Policies should reflect the modern workplace and address harassment in a thoughtful manner. For instance, does your policy address conduct that may occur via text message or online forums?
    Give similar thoughtful consideration to distributing the policies. A policy is ineffective if workers and managers do not know or understand its terms. With respect to Latino workers, in particular, employers should account for the language barrier. Are policies and acknowledgement forms translated into Spanish (either in writing or verbally)?
    Training. A well-drafted, thoroughly disseminated policy is not worth the paper it is printed on if managers do not know how to enforce its terms effectively and consistently. Training is essential to educating managers and workers alike on recognizing prohibited conduct, as well as responding appropriately when they witness or are a victim of such conduct. Again, consider providing training in Spanish to assure workers and managers understand your commitment to providing a discrimination-free environment.
    Investigation. Employers who receive a report of harassment must take it seriously and promptly start an investigation. There is no one-size-fits-all approach, but the following components are essential:
    Objectively interview the complaining party, the alleged harasser and any third-party witness, documenting the information provided and obtaining written statements. Use a translator if necessary.
    Preserve and review relevant evidence, including text messages, e-mails, documents and photos.
Analyze the facts, weigh the evidence and assess witnesses’ credibility to determine the truth.
    Arrive at a conclusion and make recommendations to resolve the complaint, including potential disciplinary action for the accused harasser.
    Communicate the outcome of the investigation to the parties involved.
    If the investigation reveals that the allegations against the accused are substantiated, take action commensurate with the gravity of the offense. Conducting a good investigation will improve morale, minimize legal liability and demonstrate a commitment to enforcing policies and promoting an inclusive and respectful workforce.
    An inclusive work environment helps employers thrive in an increasingly diverse world. By adhering to the tenets of Title VII and implementing the steps above, construction companies will build employee loyalty and a team perspective that helps them retain critical Latino workers.
    Mauro Ramirez is Of Counsel in the Houston office of labor and employment law firm Fisher Phillips. Mauro can be reached at 713.292.0150 or mramirez@fisherphillips.com.

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