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Friday, November 30, 2018

Harassment Prevention Training Top Priority in 2019


International Paper Company (IPC) in Spartanburg, SC, which manufactures and distributes packaging boxes, hired Tamika Ray in 2002 to work as a “bundler” in its converting department. Beginning in 2003, Ray’s supervisor started acting inappropriately toward her, according to a court opinion, including asking Ray to engage in sexual activity with him and offering to pay her for those acts. The supervisor also allegedly made several overtly sexual comments to Ray, stating that he wished he could “bend her over his desk,” that he would father a child with her, and that he would engage in sexual activity with Ray’s sister-in-law if Ray did not acquiesce to his demands. The supervisor also asked Ray to show him her “cootie,” “cha-cha,” and “monkey,” comments that Ray construed as requests to see her body parts. The supervisor continued this conduct despite Ray’s repeated refusal of his advances and asking him to stop. 

In 2013, several years after her supervisor’s conduct began, Ray finally reported his behavior to two other IPC supervisors. Ray explained that her supervisor would not leave her alone and was ragging her because she would not have sex with him. Although they offered to say something about Ray’s allegations, she declined out of fear of retaliation. 

Under IPC’s anti-harassment policy, when a supervisor is notified of potential harassment or discrimination, the supervisor is required to report that allegation to his manager, to a human resources representative, or to IPC’s legal department. Neither of the other two supervisors formally reported any of Ray’s complaints. 

In early 2014, her supervisor learned that Ray had complained about his conduct. He confronted Ray and asked if she had reported him for sexual harassment. Ray denied making any complaints, and her supervisor informed her that such a report could get him in a lot of trouble. Around the same time, Ray’s supervisor informed her that she could no longer perform voluntary overtime work. Before imposing this restriction, Ray often had arrived four hours before her scheduled shift to perform overtime work, which represented a significant portion of her income.

IPC investigators conducted interviews and learned that the supervisor had told two other employees that he wanted to have sex with Ray. Although the accused supervisor denied ever saying anything sexual to or about Ray, the IPC investigators concluded that he was lying. Nevertheless, IPC did not discipline the supervisor because Ray’s allegations were not corroborated by the statements from other employees.

The U.S. Equal Employment Opportunity Commission backed Ray in Federal Court, saying in an amicus brief that a reasonable jury might find that IPC supervisors weren't properly trained on compliance with the company's anti-harassment policy and also that the company did not enforce its policy reasonably or promptly with respect to Ray. Both elements are critical to an affirmative employer defense.

This week the 4th U.S Circuit Court of Appeals ruled that Ray’s case could go to a jury, finding that IPC’s failure to discipline the supervisor, retaliation by taking away overtime, and lack of adequate and meaningful supervisory harassment training were all highly significant.

Common Sense Counsel: The #MeToo era dictates that employers ramp up harassment prevention policies, training, and investigative compliance to stay out of the EEOC’s crosshairs.

Click here to read the full case: Tamika Ray v International Paper Company 

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL and can be contacted at teden@constangy.com or 334-246-2901. Link to full case at www.alabamaatwork.com