Under California employment law, "quid pro quo" workplace sexual harassment occurs when a supervisor attempts to "trade" a job-related benefit for sexual behavior or favors.1
Quid pro quo is one of the two major forms of harassment included in the legal definition of sexual harassment in California. (The other form is "hostile work environment" harassment, in which unwelcome, severe or pervasive sexual comments or behavior alter the work environment for employees.2)
What is the legal definition of "quid pro quo" sexual harassment under California employment law?
Simply put, quid pro quo sexual harassment under California labor law occurs when a supervisor says or suggests that an employee needs to perform a sexual service if s/he wants to gain an advantage, or avoid a negative outcome, at work.3
The law governing workplace sexual harassment in California is the Fair Employment and Housing Act (the "FEHA"), California Government Code 12940 GC. Under the FEHA, the legal required elements of a claim for quid pro quo sexual harassment are:
- An employee experienced unwelcome sexual advances, demands, or comments;
- The sexual advances came from a supervisor (either the employee's immediate supervisor, or someone ranked above his/her supervisor, etc.); and
- If the employee rejected the supervisor's sexual demands, a tangible negative employment action resulted from that choice.4
What kind of job-related benefits can be involved in quid pro quo sexual harassment?
Under the FEHA, a supervisor committing quid pro quo sexual harassment can attempt to "trade" either of the following for sexual favors:
- An employment benefit, or
- The absence of a negative employment action.
Put another way, quid pro quo sexual harassment under GC 12940 can involve either a promise or a threat.
Employment benefits that might be promised include:
- A promotion,
- A raise,
- More favorable shift assignments, or
- A transfer to easier or more desirable job duties.
Negative employment actions that might be threatened if the person being harassed does not comply with the supervisor's sexual requests include:
- A demotion,
- Assignment to less desirable shifts or less desirable job duties, or
- In some cases, even being fired from the job.
Example: Melanie is a nurse's assistant at a nursing home. Like everyone who works there, she has to work the night shift occasionally but prefers not to.
Melanie's supervisor Phil asks her out on a date. She declines. He says to her angrily, "So you'd rather work at night than have dinner with me?" A few days later when the schedule comes out, Melanie sees that Phil has assigned her to far more night shifts than any other employee.
This is probably an instance of quid pro quo sexual harassment.
The "trade" element involved in quid pro quo sexual harassment can be either explicit or implied.5 This means that in some cases a supervisor might only hint or suggest that s/he is making an employment benefit depend upon an employee granting his/her sexual requests.
Is it still quid pro quo sexual harassment if a supervisor doesn't follow through on his/her threat?
An employee only has a valid complaint for quid pro quo sexual harassment if the supervisor actually follows through on his/her threat.6
If the supervisor does not follow through, then the employee won't have a claim for quid pro quo sexual harassment—but may have a claim for “hostile work environment” sexual harassment.7
Who can commit quid pro quo sexual harassment in California?
The perpetrators of other forms of workplace harassment in California--including hostile work environment sexual harassment and non-sexual harassment--can be anyone: supervisors, rank-and-file employees, and even certain non-employees like clients and contractors.8
But quid pro quo sexual harassment can only be committed by someone in a supervisory role with respect to the person being harassed. Usually this means his/her immediate supervisor, but it can also mean that supervisor's supervisor or someone with even greater authority.
What should an employee do if s/he experiences quid pro quo sexual harassment at work?
Our California labor and employment lawyers recommend that employees who experience quid pro quo harassment take the following steps:
- Tell someone in the organization about the quid pro quo sexual harassment--like a more senior supervisor, or a member of the Human Resources Department. This step will help the employee make his/her case if s/he eventually needs to file a complaint or lawsuit about the harassment.
- File a complaint with the California Department of Fair Employment and Housing ("DFEH"), within one (1) year after the quid pro quo harassment occurs. This step is required before one can file a workplace harassment lawsuit in California.
- Wait for the DFEH to issue a "right to sue" notice. Once the notice is issued, the employee and his/her employment attorney have one (1) year to file a civil lawsuit seeking monetary damages against the harasser and/or the employer.9
What should an employer do if an employee complains about quid pro sexual harassment?
Most employers are shocked to hear that quid pro quo sexual harassment might be occurring at their company. If you find yourself in this situation, our California workplace harassment attorneys recommend the following seven measures:
- Listen attentively to the allegations of quid pro quo sexual harassment;
- Take immediate action pending an investigation (for example, by altering work assignments or schedules so that the complaining employee no longer needs to work with the alleged harasser);
- Thoroughly investigate the complaint of quid pro quo sexual harassment--ideally with the help of a neutral third party;
- Draw reasonable, good-faith conclusions based on the results of the investigation;
- Inform both the complaining employee and the alleged sexual harasser of the investigation results, preferably in writing;
- Take appropriate measures to protect the employee who complained and enforce your anti-harassment policy (for example, terminating or disciplining the harasser, or changing work schedules so that the harasser no longer works with the victim); and
- Reevaluate your company's sexual harassment policy or implementation to see if more could be done to prevent quid pro quo sexual harassment from occurring in the future.
Call us for help....
For questions about quid pro quo sexual harassment under California's Fair Employment and Housing Act, or to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact us at Shouse Law Group.
We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- Holmes v. Petrovich Development Co. (2011) 191 Cal.App.4th 1047, 1058-59. (“There are two theories upon which sexual harassment may be alleged: quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances, and hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.”)
- See Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414–15.
- Hughes v. Pair (2009) 46 Cal.4th 1035, 1049. (“As noted earlier, both Title VII and the FEHA impose liability for quid pro quo sexual harassment in the workplace. (See 95 Cal.Rptr.3d pp. 643–644, 209 P.3d pp. 970–971, ante.) To establish quid pro quo sexual harassment under these employment laws, a plaintiff must show “that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands.” (Ellerth, supra, 524 U.S. 742, 753, 118 S.Ct. 2257, 141 L.Ed.2d 633; see also Miller, supra, 36 Cal.4th at p. 461, 30 Cal.Rptr.3d 797, 115 P.3d 77; Kohler v. Inter–Tel Technologies (9th Cir.2001) 244 F.3d 1167, 1179 [a plaintiff seeking to establish quid pro quo harassment based on rejection of a defendant's request for sexual favors must show a causal connection between that rejection and some adverse employment action]; Cram v. Lamson & Sessions Co. (8th Cir.1995) 49 F.3d 466, 473 [same]; Kauffman v. Allied Signal, Inc. (6th Cir.1992) 970 F.2d 178, 186 [same].) But a claim involving “only unfulfilled threats ... should be categorized as a hostile work environment claim which requires a showing of severe or pervasive conduct.” (Ellerth, supra, at p. 754, 118 S.Ct. 2257.)”) See also Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir. 1994). In this case, the employee alleged that she consented to sexual relations with her supervisor, because she feared the consequences to her job for not doing so. The Second Circuit held that she did not have to present evidence of actual damages or economic loss, in order to state a claim for sexual harassment.")
- Mogilefsky v. Superior Court, endnote 3 above, at 1414. (“To state a cause of action on this theory [quid pro quo sexual harassment], is it sufficient to allege that a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor's unwelcome sexual advances.”)
- Hughes v. Pair, endnote 4 above.
- Government Code 12940 GC -- Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California workplace harassment law].
- Government Code 12965 GC -- Civil action in name of department; group or class complaint; relief; tolling of statute of limitations [workplace quid pro quo sexual harassment lawsuits].