Reduced overtime can be retaliation, 4th Cir. says
- A woman who alleged she was denied overtime because of a sexual harassment claim will get another shot at her lawsuit, the 4th U.S. Circuit Court of Appeals determined (Ray v. International Paper Co., No. 17-2241 (4th Cir., Nov. 28, 2018)).
- Tamika Ray, an International Paper Company (IPC) employee, alleged that her supervisor sexually harassed her. She asked him to stop and, when he didn't, reported him to two other supervisors. Neither escalated the complaint in accordance with company policy, and Ray's supervisor forbid her from working voluntary overtime.
- Ray eventually sued, and a federal district court granted summary judgment for the employer, finding that the harassing conduct was not imputable to IPC and that Ray failed to establish retaliation. Ray appealed, and the 4th Circuit reversed. When a supervisor is the harasser and the harassment culminates in a tangible employment action, the employer is strictly liable, the appeals court said. Additionally, a decrease in hours, if it reduces an employee’s take home pay, can constitute a tangible employment action, it said.
Employers can be liable for harassment by a supervisor that results in negative employment actions, including termination, failure to promote or hire, and loss of wages, according to the U.S. Equal Employment Opportunity Commission. But not all conduct arises to that level, the agency has said: "To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people."
Internal investigations that are performed in good faith and that end with a "well-reasoned conclusion" are key to avoiding liability for harassment claims, Pavneet Singh Uppal, a parter at Fisher Phillips, told attendees at the Society for Human Resource Management's annual conference in June.
Clear harassment reporting procedures are critical, but HR professionals also need to be approachable, ensuring that individuals have somewhere to bring their concerns, Jonathan Segal, a partner at Duane Morris, advised at the same conference. Segal suggested that both HR and front-line managers should be counseled to own reporting processes, after first saying "Thank you for raising your concerns with me. I want you to know we take them seriously."
- EEOC Harassment