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Employers Must Tread Carefully After Sex Harassment Complaint

Tamika Ray worked for International Paper Company (IPC) for over a decade. She has alleged that beginning in the year following her hire, she was subjected to sexually offensive conduct by her supervisor, Johnnie McDowell. McDowell is alleged to have made explicit sexual comments to her, asked her to engage in sexual activity with him, and offered to pay her for sexual acts. Ray asked him to stop on several occasions but the conduct continued. Ray first complained about the conduct ten years after it began, when she shared it with her new supervisor. IPC’s sexual harassment policy required a supervisor to escalate reports of harassment to managers, human resources, or the legal department. Ray asked the supervisors not to take action because she “feared” retaliation and thus her reports were not made to the required individuals. Still, Ray continued to complain to her supervisor. McDowell approached Ray sometime later and asked whether she had reported him for sexual harassment, stating that such a report would cause problems for him. She denied complaining.
Shortly thereafter, McDowell informed Ray that she could no longer perform “voluntary” overtime work before her shift began. In the past, she had been able to arrive four hours before her shift and earn overtime, which contributed greatly to her income. While Ray was still permitted to earn overtime after her shift, she alleged that other employees were earning pre-shift overtime as well. Ray reported the harassment to HR, an investigation was conducted, however, no corroboration was found.
Under Title VII, an employer is strictly liable for the harassment of a supervisor where there is “tangible employment action.” The Fourth Circuit Court of Appeals held that the opportunity to work voluntary overtime being taken away from Ray could be considered a “tangible employment action.” McDowell as the responsible party for removing her ability to earn overtime pay was a sufficient connection between the harassment and the tangible action taken, which was required under the statute. The removal of her voluntary overtime hours could also be considered an adverse employment action for the purposes of meeting the standard for retaliation. Ray’s case may proceed to trial.