Quid Pro Quo Sexual Harassment
It happens when employees who resist are fired or denied promotion.
Quid pro quo sexual harassment is usually easy to recognize. In the classic quid pro quo ("this for that") case, your boss threatens you with the loss of a job benefit, or actually changes your working conditions, because you will not submit to his sexual demands.
Quid pro quo harassment occurs when:
- a woman is fired because she ends a romantic relationship with her boss;
- a supervisor threatens to make a woman's life miserable after she refuses to date him and carries out the threat by giving her more work than the job requires; or
- an employee is denied a promotion that he deserves because he refuses to date his boss.
Courts recognized quid pro quo claims even before the EEOC published its guidelines. In a 1979 case, a bank employee whose work had been rated as superior was fired shortly after she refused to sleep with her supervisor. She was allowed to sue the bank on the theory that she had been fired because of her refusal and not for a good business reason. Her refusal affected a tangible job benefit, in this case, the ability to keep her job.
Questions and Answers
- Can a coworker or customer be guilty of quid pro quo harassment?
No. Only a person with the authority to grant or deny job benefits, like a supervisor or manager, can carry out quid pro quo harassment. Coworkers and customers normally do not have this type of power.
- Can a man be the victim of quid pro quo harassment? Yes. Title VII protects "individuals," including men. For example, a male Peace Corps worker claimed that his supervisor sat on his lap, kissed him, and told him that she wanted to have an affair with him. When he replied that he was not interested, she retaliated by giving him more work, isolating him from coworkers, and denying him a bonus that he expected to receive. Giving him more work, isolating him and refusing to give him a bonus was quid pro quo sexual harassment.
- Who is a supervisor? A person who can affect your working conditions because he or she can take action such as hiring, firing, promoting, disciplining, and deciding raises is a supervisor.
NOTE Quid pro quo harassment can occur even if the harasser does not personally carry out the action, as long as he or she participated in the decision-making. For example, Fran is sexually harassed by Jim, her boss. Because she rejects him, Jim recommends to his boss that Fran be transferred to a location that's difficult for her to reach because it is farther from her home. Jim's boss approves and tells Fran of the transfer. Fran has been the victim of quid pro quo sexual harassment even though Jim's boss approved the transfer and informed her of it.
- Does the threat need to be clear and specific? No. Quid pro quo harassment often does not involve a clear threat. It can be subtle. You do not need to be told precisely how or when you will be harmed if you reject the sexual advances. Example: Ron has an affair with Alicia, a clerk whom he supervises. When Alicia breaks it off, Ron becomes overly critical of her work.
- What are some other examples of tangible job benefits that can be affected by quid pro quo harassment? Tangible job benefits include your ability to receive salary increases, bonuses, or other incentive payments; your ability to advance within the company; and even such seemingly mundane matters as your work location and the opportunity to have a flexible work schedule and take breaks.
What Are Tangible Job Benefits?
A university librarian, after working at the school for a few years, was given the title of special assistant to the dean of the library. This was not a formal title, but it was very useful for advancement to higher administrative positions. The librarian used it in her correspondence, and it was used in the university's directories.
The librarian was sexually harassed by a university vice president, who put his hands up her dress, suggested that they go to his car or to a hotel room to "relax," and made sexual comments to her.
The librarian left the university to work on a fellowship. When she returned, the vice president again made sexual overtures, and he told the librarian that she would regret not doing what he asked. He then told her that there was no such title as "special assistant to the dean" and, in any event, that other professors were doing that work. In addition, her requests to sit on several committees that she had joined before going on the fellowship were denied. The librarian filed a sexual harassment suit.
The university's defense was that it could not be liable for quid pro quo harassment because the librarian had not suffered a tangible job detriment. The lower court agreed. It ruled that the librarian had not lost her tenured position nor had she lost any pay or fringe benefits. It said that her loss of job title had no fixed value. And, it decided that committee membership was not important to tenured professors.
Indeed, the court expressed doubt that anyone would really want to sit on these committees.
The librarian appealed. This time, the court ruled that the loss of job title was a tangible job detriment because it not only affected her stature and reputation but also hurt her chances of being promoted to a higher administrative post. The court said that the lower court was mistaken in concluding that the librarian had not been harmed because she had not yet applied for a promotion. It ruled that the vice president's actions effectively removed one of the "building blocks" for promotion. The court also said that, although his actions might not appear important to those outside university communities, each case had to be judged on its own facts. What happened to the librarian could be very significant within the school where she worked.
- Can quid pro quo harassment take place off the job? Yes. In one case, a bartender was raped by her supervisor in his car. He had driven her home after using his authority to get rid of a friend who had offered her a ride. The bartender was fired when she complained about the assault. The court ruled that her supervisor had used his status to get her alone in his car. So, the harassment was directly connected to the workplace, even though it took place away from work
- Do you need to show that the sexual advances were unwelcome?
Yes. This is a key element of any sexual harassment claim. If you solicited or welcomed the advances, then sexual harassment cannot exist.
COMPARE A bank employee who not only enjoyed an affair with her supervisor but resisted his attempts to end it could not later prove that his advances were unwelcome.
NOTE Even if you voluntarily submitted to the harasser, you may still have a valid claim if you can prove that his actions were unwelcome. The EEOC and the courts recognize that many factors, especially fear of retaliation, may cause an unwilling victim to give in to the harasser's demands.
Can quid pro quo harassment be based on a single event?
Yes. If under the circumstances the request for favors or threat of harm would be enough to convince a reasonable person that she would suffer for failing to comply, the case can be built on one event. But, cases based on a single event can be very difficult to prove.
Can you prove quid pro quo harassment if there's a gap in time between the request for sexual favors and the time that action is taken against you? Yes. As long as the gap in time is not so great that other factors that occurred in the interim are more likely to have come into play, you have a chance of proving quid pro quo harassment.
If, for example, you are fired a few days after you turn down a sexual advance, this strongly suggests retaliation. But, a connection to your discharge would be more difficult to prove if you were fired months later. In that case, the company can more easily point to other events that occurred in the interim, such as poor performance or absences, to justify the termination.
Beyond the Basics
"Jilted Lover" Cases
In cases where the parties once had a consensual relationship, it can be difficult to decide whether sexual conduct that takes place after the relationship ended is welcome or unwelcome. The EEOC and many courts recognize that Title VII protection is not lost because of a past relationship. They will look to all the circumstances to decide whether quid pro quo harassment has occurred.
Sometimes, the courts will refuse to find quid pro quo harassment when action is taken against a woman after her consensual or voluntary relationship with her supervisor ends. These courts seem inclined to believe that the action was not taken because of the woman's gender but because of the change in the relationship. So, there's no Title VII violation.
A college student had an affair with her professor. After it ended, he criticized her work and gave her low grades. She sued the college, claiming quid pro quo harassment. The court disagreed, ruling that she had not been singled out because she was a woman. Rather, the professor's actions were merely his way of making clear that their relationship was over.
Example In another case involving a soured relationship, a female supervisor and a male employee enjoyed a relationship. When he ended it, she had him fired. He sued but lost. The court said that the supervisor's actions were not based on his gender but were a reaction to losing him. He might have had a case, the court said, if she had demanded sex right before he was fired.
"Office Romance" Cases
The EEOC has coined the phrase "sexual favoritism" to describe cases where an employee who submits to a supervisor's demands for sex is granted benefits that other, equally worthy employees do not receive. The EEOC says that this scenario is basically the same as a traditional quid pro quo case if women, but not men, must grant sexual favors to get job benefits.
The EEOC provides these examples of sexual favoritism:
- An employee willingly has an affair with her supervisor. She, in turn, gets favors from him that other employees do not receive. If the supervisor also propositions other women, they can sue for quid pro quo harassment because he makes it seem that granting sexual favors is a requirement for getting job benefits
- A supervisor is interested in only one woman, and he coerces only her. He also gives her benefits that other employees deserve. Here, sex is not generally a condition for favorable treatment because only one woman is his target. But, both men and women who deserved benefits can sue. They can argue that they were injured because of the supervisor's quid pro quo harassment. Of course, the coerced employee also can sue because of the harassment she has endured.
COMPARE Sexual favoritism does not always violate Title VII. Suppose that a woman freely has an affair with a supervisor and he favors her over others. In this case, neither male nor female workers are eligible for favors-only the lover can get them. So, the men and the women are at an equal disadvantage. The supervisor's conduct may be unfair, but there is no quid pro quo harassment. For example, several male hospital workers claimed that their female coworker got a promotion she did not deserve because of her relationship with the department's administrator. The court ruled against them. It said that they were not promoted because the supervisor preferred his lover and not because of their gender.
SEXUAL HARASSMENT CLAIMS STEP-BY-STEP by Dale Callender. Copyright ) 1998 by Barron's Educational Series, Inc. Published by arrangement with Barron's Educational Series, Inc.
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