TAMIKA RAY v. INTERNATIONAL PAPER COMPANY
US Court of Appeals for the Fourth Circuit, Keenan, November 28, 2018,
Sexual Harassment – Retaliation – Denying an employee the opportunity to work voluntary overtime because she filed an EEOC complaint may be considered retaliation
Facts:
Ray complained numerous times that her supervisor, McDowell, was sexually harassing her: requesting to have sex with her and even grabbing her thigh on one occasion.
After Ray complained, McDowell told her that she would no longer be allowed to come in early and work voluntary overtime.
Ray filed an EEOC complaint and sued.
The trial court dismissed her suit, finding that denying an employee the ability to work voluntary overtime is not an “adverse employment action.”
Ray appealed, arguing that denying her the ability to work voluntary overtime cost her a “significant part of her earnings.”
Held: The Court held that denying voluntary overtime for making an EEOC complaint can qualify as an adverse employment action justifying a retaliation suit.
Equal Employment – Discrimination – Title VII forbids any employment practice that discriminates against an employee (or prospective employee) on the basis of race, color, religion, sex, or national origin
Title VII – Hostile Work Environment – An employee may take action against an employer for creation of a hostile work environment. To do this, the employee has to show:
– That there was “unwelcome conduct”
– This conduct was based on the defendant’s race, color, religion, sex, or national origin
– The conduct was serious or pervasive enough to create an abusive work environment or change her conditions of employment
– The employer is responsible
Employer Responsibility – An employer is responsible if the supervisor is harassing an employee and that harassment results in a significant change in employment status.
From the Case: “Here, the record shows that McDowell was responsible for the decision to eliminate Ray’s voluntary overtime work. McDowell’s direct involvement in the action obviates any concern about whether his conduct could be imputed to IPC. Additionally, Ray testified that McDowell repeatedly had offered her money in exchange for sex. On one occasion after eliminating her ability to perform voluntary overtime work, McDowell asked Ray whether she wanted to make extra money and told her to meet him after work. Thus, on the present record, it is impossible to separate McDowell’s motive for eliminating Ray’s voluntary overtime work from McDowell’s inappropriate conduct.”
Employer Responsibility – If someone other than a supervisor is harassing an employee, the employer is not responsible if: 1) they exercised reasonable care to prevent and correct this behavior and 2) the victim failed to take advantage of these opportunities provided by the employer
Title VII – Retaliation – It is illegal to retaliate against an employee for filing a complaint that she is being discriminated against on the basis of race, color, religion, sex, or national origin.
Title VII – Retaliation – To prove retaliation, an employee can either show:
1) Direct evidence of discrimination
OR
2) Show that:
– She was engaged in a protected activity (filing a complaint, for example)
– the employer acted against her
– and there is reason to believe that it was her protected activity that caused the action against her
Title VII – Retaliation – In order for something to count as “retaliation,” it has to be “materially” adverse (enough to keep someone from complaining in the future)
From the Case: “The district court determined that Ray’s loss of voluntary overtime work was not a materially adverse action because there was no evidence that her income decreased as a result. We disagree. As explained above, Ray has adduced sufficient evidence at this stage of the proceedings that she earned substantially less income after complaining about McDowell’s conduct. On its face, this decrease in income constituted an adverse employment action.”