21.Sep.2018

Gender-neutral construction contracts: the future norm?

Lawyers are often criticised for using overly complex legal and technical wording in contracts.

The purpose of a contract is, amongst other things, to clearly set out the rights and obligations of the contracting parties, and to limit uncertainty during the particular project.

To this end, it is important to use plain English in contract drafting and as a general rule, to use short sentences, defined terms and a clear and logical structure. Complex, lengthy and technical language can create ambiguity, which defeats the purpose of the exercise

Separately, commentators have recently focused on the adoption of gender-neutral terminology in contracts. With the ongoing attempts to reduce gender bias in the construction industry, should we be doing more to promote gender-neutral language in construction contracts? 

Gender-Neutral Drafting
It is important for workplaces and industries to reflect the increasing focus in society on promoting diversity and equality. However, according to recent statistics from the Royal Institution of Chartered Surveyors, the construction industry is one of the least diverse industries in the UK, with women making up only 13% of the workforce.

This imbalance of itself provides discouragement to women from entering the industry. It is probably also a contributing factor in the gender discrimination that women in the industry are reported to experience. 

Such discrimination can sometimes be the result of sub-conscious rather than deliberate bias, which often results from habit and traditional societal approaches. For example, the majority of construction contracts in the UK are, and have for a long time been, expressed in the male gender. 

However, the authors of some UK standard form contracts have recently started to use gender-neutral terms and language in an effort to challenge bias and negative perceptions of the industry.

NEC Contracts: a Benchmark for Standard Form Construction Contracts?
In the UK, the New Engineering Contract (“NEC”), specifically NEC3, was the contract used by the Olympic Delivery Authority for the design, planning and construction of the 2012 Olympic Games venues and infrastructure. It has also been used for the Crossrail project in London - one of Europe’s largest construction projects. The authors of the NEC3 contract sought to achieve simple, plain language with the express aim of improving clarity and reducing disputes. 

A new suite of NEC contracts, NEC4, was published last year, and gender-neutral language has been adopted in these contracts. For example, masculine pronouns used in the earlier NEC contracts are now replaced with “it” or “its”. This may seem a relatively small step, but it is an easy change nonetheless and other standard form drafters are likely to follow suit when they publish future updates to their contracts.  

Efforts to reduce gender bias in terminology are also being made in other jurisdictions. In some jurisdictions, the use of gender-neutral language in legislation is expressly required, for example, as set out in the drafting guidelines for New Zealand’s Parliamentary Counsel Office. 

Conclusion
It is increasingly likely that gender-specific drafting in contracts will no longer be acceptable, as with complex and jargon-laden drafting. For the construction industry, commentators have expressed the hope that such changes will attract more women into the industry, and lead to a more balanced and diverse workforce.

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