Quid Pro Quo Harassment

Quid pro quo harassment is a workplace situation wherein a manager promises an employee, or potential employee, something in exchange for a sexual favor. Examples of quid pro quo harassment situations involve a manager promising an employee a job, a raise, or a promotion in exchange for a sexual favor. Managers may also promise the employee that he or she will not be fired, reprimanded, or demoted, provided the employee comply with his or her sexual demand. To explore this concept, consider the following quid pro quo harassment definition.

Definition of Quid Pro Quo

Noun

  1. Something that is given, taken, or done in exchange for something else.

Origin

1555-1565       Latin    (“something for something”)

What is Quid Pro Quo Harassment

Quid pro quo harassment is the act of promising an employee something in exchange for the satisfaction of a sexual advance. Examples of quid pro quo harassment promises can include a raise, promotion, job offer, or even the withdrawing of a punishment or termination in exchange for the employee going along with the manager’s sexual advances.

While “harassment” is typically defined as repeated incidents, a single incident of this kind of behavior can be considered quid pro quo harassment. Verbal remarks can also be considered examples of quid pro quo harassment.

Those who successfully prove the elements of a quid pro quo harassment claim may be entitled to receive compensatory damages for lost wages or benefits, or even the loss of a job. In some cases, they might even be given their jobs back. Courts may also award plaintiffs damages for emotional distress. Rare though they are, punitive damages may also be awarded to discourage alleged harassers from ever participating in such behavior again, or allowing it to happen.

Sexual Harassment in the Workplace

Usually, sexual harassment in the workplace happens between someone in a position of power, like an owner, manager or supervisor, and an employee. This is because the person in power is in a position wherein he can negotiate with the employee for certain job benefits, for which the employee would have a hard time saying “no” to, such as:

  • A raise
  • A promotion
  • A positive performance review
  • A recommendation for another job
  • A preferred work assignment or shift

Sexual harassment in the workplace can also happen when someone is in fear of experiencing the consequences of refusing a superior’s sexual advances. Such consequences can include:

  • Termination
  • Demotion
  • A negative performance review
  • Less favorable work assignments or shifts
  • Being passed over for a promotion

Sexual harassment in the workplace is a form of sexual harassment, and it is illegal. As such, it can be punished via a lawsuit. If the employee does, in fact, decide to sue, then the company itself can also be held responsible for the alleged harasser’s conduct. This is because the supervisors and managers within the company are supposed to be acting on their employees’ behalf, and are therefore a reflection of the values of the company as a whole.

Quid pro quo harassment complaints can be filed through the state’s employment commission, or through the U.S. Equal Employment Opportunity Commission (“EEOC”). Interestingly, where the discrimination took place can determine the length of time that one has in which to file a claim. Normally the window is 180 days, however that deadline can be extended in certain cases.

Elements of a Quid Pro Quo Harassment Claim

There are several elements of a quid pro quo harassment claim that must be proven in order to be successful in a sexual harassment lawsuit against a former, current, or potential employer. These elements include:

  • Employment Status – That the plaintiff was either employed by, or applied for a job with, the company in question.
  • Proof of Harassment – That the manager or employee who allegedly did the harassing did, in fact, make unwanted sexual advances toward the plaintiff, or otherwise behaved in such a way that could be interpreted as sexual in nature.
  • Promised Benefits – That the alleged harasser promised certain job benefits to the plaintiff on the condition that the plaintiff accept his proposed sexual advances, or that a hiring decision regarding the plaintiff was based on his or her acceptance or rejection of the proposed advances.
  • Proof of Employment – That the alleged harasser was, at the time of the incident, employed by the company in question.
  • Proof of Harm – That the plaintiff was harmed by the alleged harasser’s conduct, and that the conduct was a significant contributor to the harm done to the plaintiff.

Insofar as the elements of a quid pro quo harassment claim are concerned, the courts seek to establish concrete proof that the harassment had a significant result that impacted the plaintiff’s employment, such as the plaintiff being fired, or being denied a promotion or a position with the company. Even if the plaintiff did, in fact, submit to the alleged harasser’s advances, he or she can still file a claim against the alleged harasser.

Those subjected to sexual harassment may also suffer from emotional distress, which can also be considered a significant factor effecting employment. Typically, the higher the level of emotional distress that is suffered, the higher the damages award. The plaintiff’s mental health records will typically be subpoenaed, which can then work to prove the plaintiff’s mental state and the impact that it had on his or her work.

When claiming emotional distress, the plaintiff must be able to show that harasser either directly intended to cause the distress, or acted in such a way that showed that he knew that emotional distress would be the result and acted anyway. The plaintiff must also be able to show that the harasser’s behavior was “outrageous,” which can sometimes be difficult to prove. The effects of emotional distress generally include such things as anxiety, upset stomach, headaches, withdrawal from group activities, a decline in productivity, and the like.

Employer Liability for Sexual Harassment

An employer’s liability for sexual harassment varies, depending on the alleged harasser’s role within the company, and the type of harassment that is being alleged. Even if an employee can prove that he or she was, in fact, the victim of sexual harassment, it is possible that the employer’s liability for sexual harassment may be nonexistent.

However, an employer cannot take such allegations lightly. In fact, it is unlawful for an employer to ignore such allegations, and to fail to make an attempt to remedy the situation. Employers must hold their employees and supervisors liable for any behavior that could be considered sexual harassment.

An employer’s liability for sexual harassment exists only if there is concrete proof that a supervisor made improper use of his or her authority to leverage sex with an employee. Additionally, there is greater liability when the company has fewer supervisors than employees in the workplace, as it easier for the supervisors’ superiors to train them, and monitor their conduct. In this case, there is no excuse for the employer to not know what is going on and cannot therefore claim ignorance in a court of law.

Quid Pro Quo Harassment Example in a Case without Consequence

Kimberly Ellerth was an employee of Burlington Industries for 15 months before she quit, claiming that her supervisor has sexually harassed her, violating her rights under Title VII of the Civil Rights Act of 1964. Her claim alleged that Ted Slowik had made offensive verbal remarks and unwanted sexual advances. Ellerth identified three incidents in particular in which Slowik threatened to deny her job benefits unless she complied with his sexual demands. However, despite refusing Slowik’s advances, Ellerth was not subjected to any retaliation from him and, in fact, received a promotion on one occasion.

Ellerth was aware of company policy with regard to sexual harassment, yet she did not report Slowik’s advances before quitting. Ellerth sued Burlington in what ultimately became a landmark court case, claiming that the company was responsible for her having to quit her job.

This case differed from the typical quid pro quo harassment case due to the fact that Ellerth did not suffer any consequences from rejecting Slowik’s advances. This case even spawned the “Ellerth Defense,” which is a two-part defense against supervisor sexual harassment. Here, a supervisor is defined as someone who is in a position to take “tangible employment action.”

A tangible employment action, by its very nature, makes the company responsible for the actions of its supervisory employees. This is because the supervisor took advantage of his relationship with the company, in order to behave in this manner. If a tangible employment action did not actually occur, however, that is where the two-part affirmative defense comes in. Here, employers must prove that:

  • The employer reasonably tried to prevent and immediately correct any behavior that could be considered sexual harassment; and
  • The employee unreasonably failed to avoid harm by taking advantage of the remedies available to him or her as provided by the employer (such as reporting it)

The first defense is usually satisfied simply by a company having an effective sexual harassment policy in place, which clearly outlines the process by which employees may report harassment incidents. However, as for the second defense, Ellerth’s case established that it is not unreasonable to fail to report harassment if the individual the employee is to report to, is, in fact, the supervisor who is doing the harassing.

The court dismissed Ellerth’s case on the grounds that she had not suffered any consequences as a result of rejecting Slowik’s advances. She appealed, and the Seventh Circuit Court of Appeals reversed the lower court’s decision. The case then made its way to the U.S. Supreme Court, which was tasked with determining this: Can an employee recover damages against his or her employer, without having to prove it was responsible for the supervisor’s conduct.

In this example of quid pro quo harassment, the Supreme Court held that employers are liable for their supervisors creating hostile work environments for their subordinates. The Court noted that employers are permitted to defend themselves against potential liability by proving that they acted quickly to prevent and/or stop harassing behavior. The employer must also prove that the harassed employee failed to take advantage of the protection offered by the company. Burlington proved neither defense, however, and so the Court found in Ellerth’s favor in a 7-2 decision.

Related Legal Terms and Issues

  • Compensatory Damages – An award of money in compensation for actual economic loss, property damage, or injury, not including punitive damages.
  • Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
  • Punitive Damages – Money awarded to the injured party above and beyond their actual damages. Punitive damages may be awarded in cases where the defendant’s actions in regard to the case are malicious, or so reckless as to give a reasonable person pause. Punitive damages, also referred to as “exemplary damages,” are ordered for the purpose of punishing the wrongdoer for outrageous misconduct in a civil matter.

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