Construction Dive: Joseph Herbert on Anti-Bias Clauses in Construction Contracts

In a Construction Dive article following a recent trend of including anti-harassment language in subcontracts to codify a unified approach against hate on job sites, Joseph F. Herbert III, partner and co-chair of the Construction Practice Area at Hall Booth Smith, told the publication like any contract clause, if properly written, anti-bias clauses in construction contracts are enforceable if breached.

“Unfortunately, the construction industry lags behind other areas of society when it comes to anti-bias and bullying,” he said. “When these clauses are included in contracts, employers run the risk of losing workers hesitant to sign them in a tight labor environment.”

In one example cited by the publication, the nation’s largest contractor has created an anti-bias toolkit with sample contract language emphasizing its stance against harassment based on race, sex, gender, transgender status, sexual orientation, and several other protected classes, including marital status, mental disability, and pregnancy. It also has a section binding subcontractors to the policy as an obligation of the overall contract, with any failure to do so justifiable grounds for breach.

Herbert told Construction Dive that when these clauses are used, they shouldn’t just be window dressing but need to be followed and enforced.

“There must be strong indemnification provisions in their subcontracts which protect the contractor in the event that their subcontractor’s employees breach these clauses,” he said. “And they can’t just be standard clauses, because each state’s laws on indemnification differ.”

Jeffrey M. Daitz, partner and co-chair of the Labor & Employment Practice Area at Hall Booth Smith, contributed to this story.

Read the full article on the Construction Dive site.