By Holt Andron, CSP, CHST, CRIS, AGC Oregon-Columbia Chapter Safety Management Consultant
Preventing workplace injuries is a core priority for AGC members, but this article will explore a different kind of organizational risk—human resources risk. Poorly managed hiring processes can expose your firm to significant liability under federal and state equal employment opportunity laws, particularly from the U.S. Equal Employment Opportunity Commission (EEOC) and Oregon’s Bureau of Labor and Industries (BOLI).
You probably already know the EEOC enforces federal law, which prohibits discrimination based on race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40+), disability, or genetic information. In Oregon, BOLI enforces state laws that often provide broader protections and apply to smaller employers[1]. You may feel that discrimination issues are unlikely to affect your organization, but in the last four years, the EEOC has taken high-profile enforcement action against contractors across the United States for claims of harassment, retaliation, and discrimination.[2]
From a risk perspective, managing your human resources is as important as managing workplace safety. Let’s explore some common topics and trips that can happen:
Oregon’s New Limits on Age and Education Inquiries
In Oregon, as of September 26, 2025, House Bill 3187 generally prohibits an employer, prospective employer, or employment agency from requesting or requiring an applicant to disclose their age, date of birth, or when they attended or graduated from any educational institution. This prohibition applies until the completion of an interview or a conditional offer of employment (where there is no interview). An exception applies if requesting age-related information is required to affirm the applicant meets bona fide occupational qualifications (BFOQ[3]), or comply with any provision of federal, state or local law, rule or regulation. Also note that Oregon’s “ban the box” and fair-chance hiring laws generally restrict employers from asking about criminal history before the interview stage of hiring.[4]
Mandatory Written Policies for Harassment, Discrimination, and Sexual Assault
BOLI investigates claims of workplace retaliation for reporting unsafe working conditions and protects injured workers from discrimination. But did you know that BOLI requires employers to have a written policy to reduce and prevent harassment, discrimination, and sexual assault at work? This policy must be provided to all workers at the time of hire and be easily available to them. BOLI provides a compliant policy template in both English and Spanish on their website: BOLI : Discrimination at Work : For Workers : State of Oregon
Key Consideration: Are Your Hiring Decisions Documented Like Your Safety Processes?
How well do you document employment decisions to ensure no one can make a claim of unfair discrimination, defined as employment decisions and actions that are not job-related, objective, or merit-based? Compare the amount of documentation your organization creates for safety meetings, pre-task plans, site-specific safety plans, SDS compilation, and other safety-related activities with the documentation created for hiring, promotion, and disciplinary decisions. Is there an imbalance between the two? When you are interviewing, hiring, and promoting, use templates and other standardized materials to support your decisions as being objective and merit-based.
Contemplate the risk to be managed in these situations, as well as the continuum between compliant, well-documented hiring, training, and performance management. Is workplace safety integrated in each of these stages by ensuring all employees are objectively and uniformly evaluated for safety performance?
Disparate Treatment vs. Adverse Impact in Construction Hiring
Disparate treatment is intentional discrimination based on a protected characteristic. Adverse impact occurs when an employment practice has a disproportionate effect on a protected group, regardless of its intent. An example would be requiring all applicants to take a typing speed test, which may unintentionally discriminate against older candidates.
In environments like construction and general industry, where tasks are physically demanding, adverse impact can occur when a pre-employment physical is required that disproportionately excludes women.[5] The following article from the EEOC clarifies what adverse impact looks like in practice: Hiring Practices That Have a Negative Effect on Certain Applicants | U.S. Equal Employment Opportunity Commission.
Another area of adverse impact risk is informal and word-of-mouth recruitment practices, as well as limited-reach job advertising (e.g., with only certain trade schools or platforms that do not reach women and minorities). This is common in construction and can potentially perpetuate the underrepresentation of protected classes. To combat this risk, work to proactively conduct adverse impact analyses on your firm’s selection, hiring, and promotion procedures. Using the four-fifths rule (80%) rule is a way to conduct this type of analysis.[6]
Practical Steps for Oregon Construction Employers
Managing human resources risk requires the same systematic approach as managing jobsite safety. Here are actionable steps you can implement now:
- Job Descriptions: Clearly list essential functions (physical demands, safety responsibilities, required skills). Note that reasonable accommodations will be considered for qualified individuals with disabilities.
- Recruitment: Use inclusive language and post through broad, diverse channels. Avoid preferences or requirements that could imply bias or create an adverse impact.
- Application and Interview Process: Standardize questions and evaluation criteria. Use structured scorecards. Conduct post-offer medical exams only if they are uniform, job-related, and applied consistently.
- Training: Provide regular EEO and harassment prevention training tailored to construction environments. Include objective hiring practices and the recognition of unconscious bias.
- Recordkeeping & Auditing: Maintain records for the required retention periods. Periodically audit hiring, promotion, and disciplinary files for consistency and compliance, much like safety audits.
- Resources: Leverage these authoritative sources:
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- EEOC Construction Guidance and Promising Practices: eeoc.gov
- BOLI Discrimination at Work (protected classes, filing, model policy): oregon.gov/boli
- BOLI Accommodations Toolkit: oregon.gov/boli
- Oregon Revised Statutes Chapter 659A (employment discrimination): oregonlegislature.gov
Bottom line: Strong hiring practices don’t just reduce legal risk; they build a safer, more skilled, and more inclusive workforce. These same principles that drive excellent safety outcomes (standardization, documentation, objective evaluation, and continuous improvement). By treating hiring risk with the same seriousness as job site hazards, Oregon construction employers can protect their people, their reputation, and their bottom line.
Disclaimer: This article is for general informational and educational purposes only and does not constitute legal advice. Employment laws are fact-specific and subject to change. Consult with qualified employment counsel, BOLI, or the EEOC for guidance tailored to your organization’s situation.
References
[1] Through a work-sharing agreement with the EEOC, BOLI can also investigate and handle complaints that involve both state and federal anti-discrimination laws: Fair Employment Practices Agencies (FEPAs) and Dual Filing | U.S. Equal Employment Opportunity Commission
[2] Combating Employment Discrimination in Construction | U.S. Equal Employment Opportunity Commission
[3] BFOQs: When Discrimination Isn’t Discrimination
[4] BOLI : Hiring discrimination and “Ban the Box” : For Workers : State of Oregon
[5] PRE-EMPLOYMENT TEST BY DIAL CORP. DISCRIMINATES AGAINST WOMEN, COURT RULES IN EEOC CASE | U.S. Equal Employment Opportunity Commission
[6] Adverse Impact & The 4/5ths Rule: A Simple Guide