Quid pro quo harassment in the workplace

Have you ever heard the Latin phrase quid pro quo? It means "something for something." While you can use this particular phrase in a variety of circumstances, when used in the workplace, it involves allegations of sexual harassment.

In most cases, quid pro quo harassment occurs when a supervisor seeks sexual favors from a worker in return for some type of job benefit — such as a raise, better hours, promotion, etc. — or to avoid some kind of detriment like a pay cut, demotion, poor performance review, etc. In fact, quid pro quo, specifically sexual harassment, is one of the two types of workplace claims that fall under Title VII of the Civil Rights Act — the other being hostile work environment harassment.

It's important to know that when a superior demands sexual involvement from a junior — instilling the fear of demotion — and the junior refuses, it still creates a hostile work environment that requires immediate action.

Not only is quid pro quo sexual harassment prohibited by Title VII, but it can happen to anyone in the workplace, regardless of gender.

As per Rieger v. Arnold (2002) 104 Cal.App.4th 451, 461-462, the term sexual conduct, as used in section 1106, subdivision (a), includes not only sexual activity but also any active or passive behavior that indicates a willingness to participate in it.

Consequently, proof of an employee's sexual conduct, including racy banter, sexual horseplay, and statements about past, proposed, or planned sexual exploits, is inadmissible. This distinction clarifies the quid pro quo standard.

How do employees prove quid pro quo harassment?

Employees must be able to prove certain factors if they wish to hold their employer legally responsible for quid pro quo sexual harassment in the workplace. While every case is different, the elements for proving quid pro quo harassment usually include the following:

• The employee must show they are a member of a protected class, which, in this case, simply means that federal law — that is, Title VII — expressly protects the employee and all other employees from workplace discrimination on the basis of sex.
• The employee was the target of unwelcome sexual advances from another employee — typically a supervisor — or company officer.
• The harassment was sexually motivated by the harasser.
• The employee's reaction to the sexual advances negatively impacted some aspect of their employment, such as compensation, a promotion, or a demotion.
• The employer is liable for the harassment under the legal principle of respondeat superior, meaning the alleged harasser had authority over the employer, either as their direct supervisor or the alleged harasser was in a position to influence the terms or conditions of the employee's employment.

However, it's important to note that existing employees aren't the only ones who can claim quid pro quo harassment in the workplace. Indeed, job applicants may also bring a claim in certain situations, such as when a hiring supervisor promises an interviewee a job, but only if the interviewee agrees to their sexual advances.

The difference between quid pro quo sexual harassment and a hostile work environment

Quid pro quo sexual harassment occurs when a superior makes sexual advances toward an employee in exchange for work perks or protection from punishment. In contrast, hostile work environment harassment is when an individual is subjected to unwanted sexual advances, statements, or actions in the workplace. Unlike quid pro quo harassment, there is no requirement for an outright favor exchange. Title VII of the Civil Rights Act prohibits both forms of unwanted sexual behavior in the workplace.

It's important to understand that sexual harassment can take many forms. For example, a coworker who is rude to an employee, making sexual innuendos and crude gestures, can create a dangerous work environment. Even a single incident can be damaging.

Similarly, a coworker who uses sexually aggressive touch can contribute to a hostile work environment, even without the presence of an authority figure. All workers, not just managers, can play a role in creating an unsafe workplace through their words and actions.

The law takes both forms of harassment seriously. It prohibits participation in quid pro quo harassment or harassment that creates a hostile work environment under the Civil Rights Act of 1964 — such behavior damages both the workplace and the individuals involved.

Are threats enough to prove quid pro quo harassment?

As mentioned above, one thing an employee would need to show to prove quid pro quo harassment is that their reaction to their supervisor's sexual advances negatively impacted their employment in some way.

What happens if a supervisor threatens to do something but they never actually follow through? For example, imagine a situation in which a supervisor says they will demote or fire an employee if the employee refuses to submit to their sexual advances.

What happens if the supervisor doesn't actually do anything after the employee rejects them? Does the employee still have a claim for quid pro quo harassment? In most cases, the employee would not have a quid pro quo claim.

In fact, quid pro quo harassment generally requires some type of actual, tangible employment consequence for the employee following their refusal to submit to their harassing supervisor. Unfulfilled threats that never materialize typically aren't enough. So, while situations such as these may first appear to involve quid pro quo sexual harassment, they usually don't.

However, this type of harassment will generally still warrant a claim for a hostile work environment — meaning the company still might not be off the hook, even if the supervisor doesn't follow through with their threats.

What if the request for a sexual favor is turned down?

It is still possible to prove sexual harassment if the victim experiences negative consequences at work after refusing to comply with the sexual demand or rejecting unwelcome sexual advances. However, not all difficulties at work need formal disciplinary measures.

As noted in Gautreau v. EnLink Midstream Operating GP, LLC, 2021-0796, to win a hostile work environment sexual harassment claim under Louisiana's Employment Discrimination Law (LEDL), the plaintiff must assert and prove that:

1. The victim is a member of a legally protected group
2. The victim was the target of unwanted harassment
3. The harassment was motivated by discriminatory animus (sex)
4. The harassment had an adverse impact on a material term, condition, or privilege of employment
5. The employer knew or should have known of the harassment and failed to

How can companies try to help prevent quid pro quo sexual harassment? 

Companies can take steps to minimize quid pro quo harassment from happening in their workplace by having clear policies in place — and, more importantly, enforcing them. The following are some of the things they should do: 

• Create and maintain a written equal employment opportunity policy prohibiting sexual harassment and retaliation and make sure this policy is readily available to employees. 
• Develop a complaint procedure for workers subjected to this harassment. 
• Designate a way for employees to report complaints anonymously and confidentially. 
• Effectively and quickly respond to complaints. 
• Discreetly investigate allegations and impose disciplinary action where appropriate. 
• Circulate and post the policy. 
• Have all company leadership show strong disapproval of such conduct. 
• Provide employee training on company sexual harassment policies, including for supervisors, so they know disciplinary action will occur if they violate the policy. 

These are just a few of the many things companies can do to encourage a healthy working environment for all employees, not to mention preventing harassment — or cyber security deception and any form of bribery, for that matter — before it's too late.

Staying compliant with Title VII of the Civil Rights Act

While Title VII of the Civil Rights Act and its policy on quid pro quo sexual harassment may seem straightforward, the ambiguity can come when the claims occur, and it becomes a complicated web of crisscrossing allegations. 

If you would like to keep up on the nuisances of quid pro quo harassment cases, you might want to start now and try Practical Law for free for seven days. It has all the resources you will need to understand these types of claims inside and out.