Notes from the Editor

AuthorJohn Foust
Published in The Construction Lawyer, Volume 41, Number 1, Winter 2021. © 2021 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
In Search of a Better
For many of us, 2020 will be
remembered as the year of
working from home. Law rms
and consulting firms closed
their physical ofces beginning
in March 2020, in response to
the public health guidelines for
reducing exposure to the coronavirus. Attorneys and staff
were told to work from home until further notice, which
is now looking like June of 2021, depending on where
one lives and the size of one’s ofce.
One of the most challenging aspects of working from
home, when it is done on a nonvoluntary basis, is the
disparity with which it impacts different workers. For
someone with a large suburban home, no small children,
and crackerjack WiFi, working from home is an abso-
lute dream. Gone is the hour-plus commute into the city,
the crowded ride on public transportation, or the long
walk through inclement weather that threatens to drench
your best business suit. For these fortunate souls, work-
ing from home comes with the casual freedom to start a
pot of beans on the stove or put a chicken in the oven to
roast, all while sitting on a conference call and applying
strategic use of the mute button.
But the picture is far less rosy for someone raising
small children in a cramped city apartment. For these
true soldiers of the pandemic, working from home means
simultaneously juggling childcare, supervising Zoom-
school, and trying to prepare for a virtual deposition on a
kitchen island while your partner hosts a video call from
the bathroom because that is the only room with both a
locking door and a decent WiFi signal.
Another challenge of working from home is that it can
stunt the professional growth of workers who are still learn-
ing their craft and developing their professional network.
Those of us who have been practicing long enough to have
become partners are aware of how much we learned by
working in close physical proximity to our mentors. Good
mentors often had an open-door policy that we were care-
ful not to overuse but that often proved invaluable when we
encountered a difcult problem. We also benetted from
being invited to lunches, events, and casual meetings. Ask
yourself this: How many clients would you have today if
you had spent your entire career working from home and
had never attended a Forum program? It’s easy to see how
the restrictions imposed in response to the pandemic fall
hardest on our junior colleagues who are still trying to
develop their skills and their networks.
The theme of this Winter 2021 edition of The Con-
struction Lawyer is the search for a better workplace. The
three featured articles each addresses, in different ways,
the challenges facing employers, employees, and profes-
sionals working in the construction-related industries
today. In Labor and Employment Risk in the Real World: A
Practical Guide to Understanding Recent Trends and Laws
Intersecting the Construction Industry, authors Erin Ebeler
Rolf and Andrea Woods offer a practical guide to issues
like LGBTQ, sexual orientation, and gender identication
in the workplace. The article discusses the implications of
the Supreme Court’s recent decision in Bostock v. Clay-
ton County, which ruled that discrimination on the basis
of sexual orientation or gender identity is discrimination
“because of sex” and therefore prohibited by Title VII. The
article also contains a useful discussion of maintaining
privilege during an employer’s internal investigation and
specic challenges facing multiple generations operating
together in one workforce.
Another article that ts our theme of building a bet-
ter workplace is The Intersection of Inclusion, Diversity,
and Risk Management in the Construction Industry by
Lance Currie, Amy Iannone, and Claudia Mandato. In
that article, the authors start by providing an update on
the state of diversity and inclusion in the construction
industry and go on to discuss the risks associated with the
lack of a diverse workforce, including safety risks, legal
risks, and reputational risks. The article ends with a dis-
cussion of unconscious bias and a set of practical tips
for employers to consider for avoiding bias and improv-
ing diversity and inclusion.
Finally, in Pay Equity in the Construction Industry,
authors Anne G. Bibeau, Michael J. Frantz Jr., and Kris-
ten E. Protas discuss the Equal Pay Act and the recent
increase in state legislation dealing with gender-based
wage disparity and how that legislation may impact the
construction industry.
Disparity in the workplace is a problem that must be
acknowledged before it can be solved. But that is more
easily said than done. By its very denition, disparity is
something that benets one group while disadvantag-
ing another, and the beneted group will always have
an incentive to ignore the problem or declare it incapa-
ble of being solved. The three articles in this issue of
The Construction Lawyer are good reminders that work-
place disparity remains a perpetual problem for which
we should always be seeking solutions.
John Foust is a partner with Ralls Gruber & Niece in
San Francisco, California.
John Foust
By John Foust

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