The dotted line: Why Amazon’s rope demand is ‘a big deal’

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

“This is a precedent-setting case,” said Kenneth Krayeske, a civil rights attorney for BBB attorneys in New Haven, Conn., which is not involved in the case. “Actually, this will survive a motion to dismiss. I’ll be surprised if it doesn’t.”

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

In the complaint, five black and Latino workers argue legally that regardless of who placed those ties, the owners and contractors who ultimately controlled the site failed to take adequate steps 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 lawsuit also alleges retaliation against workers of color after they report the ties. Supervisors at RC Andersen and Griffin told law enforcement investigators that the plaintiffs planted the nooses themselves, according to the lawsuit, in order to be transferred from 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 so far in the case have focused on attorneys’ appearances, establishing filing deadlines and procedures for filing notices; no trial date has been set.

A high profile case

The case could be important, given the prevalence of ties that appear in construction works all over the country When it was introduced on September 29, industry watchers immediately took notice.

“This is a big deal,” said Peter Davoren, CEO of New York-based Turner Construction, the industry’s largest commercial contractor by revenue, which is also open about the elimination of prejudice motivation events from workplaces. “We are all responsible.”

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

“It’s a new approach, because if you were a dental hygienist and you walked into your office and someone drew a swastika on the counter, you would expect the dentist, your boss, to protect you from that,” Krayeske said. “That’s the same thing, but it involves a contractor going into a job site.”

Compensation and joint liability

The lawsuit also seeks to hold the site’s owner, Amazon, responsible for what happened on its property. While this is a common approach in employment law, it could intersect with the unique provisions of construction contracts, which are typically filled with indemnification clauses that attempt to protect parties, particularly owners and prime contractors, from faults committed by others.

“Generally speaking, you can go for joint liability against multiple parties — Amazon and the contractors,” said Charles Krugel, a Chicago employment lawyer who typically represents employers. “But you would have to look to see what kind of agreement there is between Amazon and the contractors as to who is responsible.”

In that regard, construction lawyer Carol Sigmond of 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 liable,” Sigmond said. “I think Andersen and Griffin have more trouble, because they control the place.”

Additionally, if the retaliation claim that supervisors targeted law enforcement officials at the workers themselves is proven, this could be even more troubling for contractors.

“The mere fact that they said, ‘Look at the black workers,’ is that racist in itself?” Sigmund said. “That, to me, is the question that needs to be asked out loud.”

While workplace ties are problematic for contractors, they don’t necessarily constitute liability for a hostile work environment, he said.

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

A wider change

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

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

The lawsuit speaks to the broader shift in the workplace where anti-harassment guidelines are increasingly focusing on employees, according to Trent Cotney, a construction attorney at Adams and Reese in Tampa, Florida.

The Equal Employment Opportunity Commission, the federal agency charged with monitoring employment discrimination, proposed in September Updated guide to workplace harassment and indicated that it would look more closely at evidence of systemic discrimination.

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

Cotney said that procedure should include designating multiple points of contact for employees to voice their concerns, including anonymously and to people not directly involved in the situation.

Once the policy and handbook have been created, to demonstrate that an employer has good faith in this area, contractors should ensure that they are put into practice. Just as workplace safety training is emphasized, so should harassment training, Cotney said.

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

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