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Losing Out On Voluntary Overtime Chances Can Be Tangible, Adverse Action.

Employers are by now well-versed in the concept that under Title VII, an employer is strictly liable for a supervisor’s harassment when the harassment results in a tangible employment action.  The obvious employment actions include termination, demotion, failure to promote, reassignment with significantly different responsibilities, etc.  The Fourth Circuit Court of Appeals, in Ray v. International Paper Co., No. 17-2241 (4th Cir. 2018), added to the list denying voluntary overtime opportunities when such action results in a “significant change in benefits.”

In Ray, the plaintiff had worked voluntary overtime on a very regular basis, usually working four hours before the start of her regular shift.  Those overtime earnings were a significant portion of her income.  When she was suddenly denied the opportunity to continue working voluntary overtime, after her supervisor had learned she complained about his harassing advances, she sued under Title VII for sexual harassment and retaliation.

The employer countered that Ms. Ray earned more overtime wages in the year following her complaint that the year prior, and could not show lost income as a result of her supervisor’s actions.  The Fourth Circuit disagreed and reversed the trial court’s summary judgment decision.  The Fourth Circuit noted that Ms. Ray did not claim she was unable to work any overtime; indeed she did work mandatory overtime often, which explains her overtime earnings.  She was, however, prevented from working voluntary overtime, which she had done previously on an almost daily basis and while other employees continued to do so.  The wage differential with that voluntary overtime removed from her paycheck was significant enough for the Fourth Circuit to conclude that it was a jury question whether she suffered a tangible employment action at the hand of her supervisor.  As such, International Paper could be strictly liable under Title VII and precluded from arguing the Faragher/Ellerth affirmative defense.  For the same reasons, the denial of voluntary overtime as a retaliatory adverse employment action within the meaning of Title VII was also proper for the jury to decide.

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