Quid pro quo harassment is generally defined as a harassing request, nearly always for a sexual favor, that is tied to a workplace benefit or advancement. The target of the harassment is put in a position where he or she has to fulfill the request in exchange for the advancement or in order to escape workplace sanctions.
What is quid pro quo sexual harassment?
Generally, quid pro quo harassment is defined as a request for a sexual favor in exchange for a job-related benefit. Workplace sexual harassment is a form of sexual discrimination that violates Title VII, a federal employment law.
That benefit, sometimes referred to as a tangible employment action, can take a variety of forms, including:
- a promotion,
- a pay raise,
- a good performance evaluation,
- getting hired,
- advancing to the next round of interviews in the job application process,
- avoiding a demotion,
- keeping the job, or
- preventing an adverse employment decision, like a transfer to a less desirable location or position.
The sexual favor does not necessarily have to be sexual intercourse. Lesser favors can support a quid pro quo harassment claim, like:
- a kiss,
- a date,
- intimate contact, like a hug or a massage, or
- potentially intimate interactions, like getting dinner after work.
The name “quid pro quo” comes from the Latin phrase that means “this for that.” The workplace benefit is held back in exchange for the sexual favor. The terms of the exchange can be either explicit or implied.
In general, the person making the request for a sexual favor is the employee’s supervisor or manager, or a job applicant’s hiring manager. The supervisory role puts them in a position of power that they can then use as leverage over the target of the harassment. While there are rare cases where a co-worker gains enough leverage to inflict a tangible employment action on someone else, harassment by co-workers is usually confined to creating a hostile work environment.1
However, the recipient of the sexual favor does not necessarily have to be the person making the request.
For example: A big client is flirting with a female salesperson. When she tells her boss about it, he tells her that if she does not go along with it, he will take her off the account and she will not receive the considerable amount of commission that would come with a sale.2
Victims of sexual harassment should strongly consider establishing an attorney-client relationship with an employment law attorney from a reputable law firm. With the legal advice of a sexual harassment attorney, victims of quid pro quo situations can hold their harassers accountable and recover compensation for their experiences.
Is quid pro quo harassment always sexual?
Quid pro quo harassment does not necessarily have to be sexual in nature. Non-sexual workplace harassment can, in theory, take the form of a quid pro quo. However, it is extremely rare for a supervisor to make a discriminatory or harassing request that is not based on the target’s sex.
For example: Sadiq’s supervisor threatens to fire him if he does convert to Christianity.
What if the request for a sexual favor is turned down?
If the target of the quid pro quo refuses to perform the sexual demand or turns down any unwanted sexual advances, it can still support a sexual harassment claim if the target suffers a tangible employment action, as a result.
However, not all setbacks in the workplace amount to a tangible employment action. According to the Supreme Court of the United States, the following employment actions are tangible enough to support a harassment case:
- demotion,
- termination,
- a pay reduction,
- rescinding a significant amount of the target’s workplace or job benefits,
- refusing to promote the target,
- denying a pay raise, or
- sending the target on an undesirable reassignment.3
In order to be a sufficiently undesirable reassignment, courts have required a negative change in the worker’s:
- job title,
- compensation,
- job responsibilities, or
- working conditions.4
Some examples of workplace repercussions that have not amounted to a tangible employment action include:
- firing the target of the harassment, only to reinstate them hours later,5
- changing a lock to create a minor inconvenience to the target on the job,6 and
- refusing to cover the travel expenses for a conference that was related to the job.7
To support a sexual harassment complaint, the penalty or lost employment benefit has to be connected to the refused proposition. The amount of time between the refusal and the repercussion is strong evidence that the two are connected.8
In many states, a close temporal proximity between the refusal and the tangible employment action is enough to satisfy a prima facie case for a quid pro quo sexual harassment claim.9 However, if the employer presents evidence that the employment action was due to legitimate and non-harassing reasons, the alleged target of the harassing behavior will have to go further than just relying on the timeliness of the conduct.10
If the request for a sexual favor is turned down, but then no tangible employment action takes place, there is no quid pro harassment. Quid pro quo harassment law requires a connection between the sexual advances and the workplace benefits or consequences. If there were no consequences to refusing the advance then there is no connection between the two.
However, making empty threats to create workplace problems for anyone who does not perform a sexual favor can still create a hostile working environment.11
Quid pro quo sexual harassment victims may be eligible for compensatory and punitive damages.
What is the law in California?
Under California state law, quid pro quo harassment is defined as:
- an employee experiencing unwelcome sexual advances, comments, demands, or other conduct of a sexual nature,
- that sexual conduct comes from someone higher up in the company, whether the employee’s supervisor, or their supervisor’s supervisor, and
- if the employee rejects the advances, he or she experiences a tangible negative employment action due to that refusal.12
This type of harassment violates the California Fair Employment and Housing Act (FEHA).
Victims who have experienced this type of sexual harassment can hire an employment lawyer to pursue compensation for the legal damages that stemmed from this form of sexual harassment, like the victim’s emotional distress. In extreme cases, sexual harassment lawyers may be able to recover punitive damages for claimants, as well.
Legal References:
- Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998).
- Hylind v. Xerox Corp., 380 F.Supp.2d 705 (D. Md. 2005).
- Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998).
- See Harlston v. McDonnell Douglas Corp., 37 F.3d 379 (8th Cir. 1994) and Spring v. Sheboygan Area School Dist., 865 F.2d 883 (7th Cir. 1989).
- Keeton v. Flying J, Inc., 429 F.3d 259 (6th Cir. 2005).
- Roebuck v. Washington, 408 F.3d 790 (D.C. Cir. 2005).
- Murray v. Chicago Transit Authority, 252 F.3d 880 (7th Cir. 2001).
- Clark County School Dist. v. Breeden, 121 S.Ct. 1508 (2001).
- El Sayed v. Hilton Hotels Corp., 627 F.3d 931 (2d Cir. 2010).
- Same.
- Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998). For more on federal law, see Policy Guidance on Employer Liability under Title VII for Sexual Favoritism, Equal Employment Opportunity Commission (EEOC).
- Hughes v. Pair, 46 Cal.4th 1035 (2009).
