Notes from the Editor

• Date: 01 July 2021
• Author: John Foust

THE CONSTRUCTION LAWYER3Winter 2021

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.

NOTES FROM THE EDITOR

In Search of a Better

Workplace

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

TheConstruction 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