This story has been updated after the judge signed the consent decree.
Just days before a scheduled trial, Whiting-Turner Contracting Co. and the Equal Employment Opportunity Commission agreed to settle a federal lawsuit that had accused the company of subjecting Black employees to a racially hostile work environment on a Google data center project in Clarksville, Tenn.
A consent decree between Baltimore-based Whiting-Turner and EEOC includes an agreement for the company to revise its anti-harassment policy and to pay $1.2 million. Company leaders note they have continued to dispute the accusations and say that the removal of two Black workers from the job was not discrimination or retaliation, but was actually related to complaints against them for harassing another coworker over religious beliefs. A federal judge in Nashville signed off on the deal May 3 and formally dismissed the case.
“Whiting-Turner has denied liability or wrongdoing from the beginning of this case and we are proud of our efforts to combat discrimination and to promote diversity and inclusion within the company and on our job sites,” says Timothy Regan, Whiting-Turner president and CEO.
In court filings, attorneys for the commission wrote that the proposed consent decree’s provisions are “consistent with the public interest because they are designed to address and mitigate the potential or likelihood that future unlawful behavior will occur.”
Roslyn Griffin Pack, an EEOC trial attorney, said in a statement that the consent decree would ensure managers are trained on Title VII of the Civil Rights Act, which prohibits employment discrimination based on race, color, religion, sex and national origin, and that supervisors would "take prompt action at the first sign of trouble."
"It is our hope that the injunctive and monetary relief obtained through this lawsuit will serve as a reminded to other construction companies that the EEOC remains committed to eradicating race discrimination in the construction industry," Griffin Pack said.
A mediator reported that the two sides had reached a settlement on March 30. The proposed consent decree was filed May 1.
EEOC filed the suit in October 2021 based on the claims of two Black laborers on the Whiting-Turner project building the data center in 2018 and 2019. The men said they were segregated on all-Black crews, given tougher assignments than white workers, denied opportunities for overtime, subjected to racist talk from a white crew leader and faced racist graffiti on portable bathrooms at the worksite, according to the EEOC complaint. The men then alleged they were fired in retaliation for complaining about their treatment to supervisors and during a team meeting.
Ron Taylor, an attorney representing Whiting-Turner in the case, says the company actually received a report that the two had been bullying another Black worker over his beliefs as a Jehovah’s Witness. He says the bullying was so bad it left the man in tears when someone from Whiting-Turner learned about the situation and asked the victim about it.
Whiting-Turner said in court filings that it has no record of either man in the EEOC case ever making a complaint of racial harassment or discrimination during their time on the project. One "was let go because he was violating a policy against bullying other people,” Taylor says.
Both men behind the EEOC complaint and the man Taylor says they bullied were actually employees of a staffing subcontractor, Express Employment Professionals LLC, which Whiting-Turner says reassigned the men accused of bullying their coworker at its request.
Whiting-Turner declined to comment on its relationship with the staffing firm going forward. A spokesperson for the subcontractor said it could not comment on pending litigation.
EEOC said in court filings that 27 other workers joined the case as claimants after also experiencing a hostile work environment, including racial graffiti. Whiting-Turner says there was no evidence found that any of its employees were involved in creating the graffiti. Additionally, the contractor says it addressed graffiti when it was found, locking vandalized toilets until they could be cleaned or replaced, and taking measures to deter further graffiti.
The $1.2 million that Whiting-Turner agreed to pay will be split among two workers and 27 other class members who joined the EEOC case. Agency court filings indicate it may have sought compensatory and punitive damages of up to $300,000 per claimant if the case had gone before a jury.
However, EEOC also notes in a filing that a jury could have opted to award a lower amount, based on past verdicts and the amount of time the claimants worked on the Clarksville job.
“While there was no credible evidence that any Whiting-Turner employees were involved in the actions alleged, a monetary settlement was reached in order to avoid the cost and expense of a protracted trial,” Regan tells ENR.
Revisions to Whiting-Turner’s anti-harassment policy and training programs made as a result of the consent decree would incorporate a zero-tolerance policy for racial graffiti, jokes, slurs, epithets and hate symbols in the workplace. The contractor also agreed to assign an equal employment opportunity liaison to each of its construction sites. The liaisons would be responsible for ensuring all temporary employees receive a copy of the anti-discrimination policy and that they know how to report any cases of discrimination, harassment or retaliation on the job.
EEOC Chair Charlotte Burrows said in a statement that the commission would continue to use outreach, enforcement and litigation to address "systemic problems" of racism in the construction industry.
"Unfortunately, the shocking findings of the EEOC's investigation in this case are not an isolated occurrence in the industry," Burrows said.