Sexual harassment can take many forms in a modern workplace. Co-workers may make sexually explicit comments or send lewd text messages to a colleague, which can create a hostile work environment. In some situations, a supervisor may even make promises or threats about an employee’s job if they don’t comply with their sexual advances. This is known as quid pro quo sexual harassment.
Quid pro quo essentially means “something for something.” In the employment law context, it involves a superior offering or threatening something related to work in exchange for an employee going along with their sexual demands. When this occurs, the employee may be able to file a lawsuit against their employer.
Understanding Quid Pro Quo Sexual Harassment
As mentioned above, this type of harassment occurs when an employee’s terms of employment (including hiring or continued employment) are conditioned on submitting to sexual advances.
Under California’s Fair Employment and Housing Act (FEHA), quid pro quo sexual harassment occurs if:
An employee experiences unwelcome sexual advances, demands, or comments;
The sexual advances are made by a supervisor; and
A tangible negative employment action resulted once the employee rejected those sexual demands, advances, or comments.
Under the FEHA, quid pro quo sexual harassment may involve either the promise of an employment benefit or a threat to take an adverse employment action. If a supervisor doesn’t follow through on a threat or a promise, then it isn’t quid pro quo sexual harassment — but the employee may have a claim for hostile work environment sexual harassment.
Consider This Situation:
Colleen has worked at a small public relations firm for nearly two years and is due for a promotion. Before her review, she meets with her supervisor, Chris, who tells her that he can “put her on the fast track” and advance her career, but only if she agrees to accompany him on romantic weekend getaway where they can “really connect with each other.” Colleen declines his offer and, as a result, does not receive her promotion. Because her promotion was conditioned on having sex and/or engaging with Chris romantically, it may be considered quid pro quo sexual harassment.
Further, if Colleen reports this to Human Resources and Chris begins to retaliate against her, she would then have a claim for employment retaliation under the Fair Employment and Housing Act. If taken further and the company terminates her in response to the complaint, she would then have a claim for wrongful termination as well as whistleblower retaliation.
Promised benefits may include things such as a promotion, more favorable shifts, a transfer to a better location, a raise, or even being given easier job duties. Negative employment actions that may be threatened include a demotion, being put on less favorable shifts, being transferred to an undesirable job site, or even being fired.
Importantly, the trade element (something for something) in quid pro quo sexual harassment does not have to be explicit. Even if a supervisor just hints at a potential benefit if an employee goes along with their sexual requests, it may still be quid pro quo sexual harassment.
While various forms of sexual harassment can be committed by anyone, including co-workers, clients, contractors, and supervisors, quid pro quo sexual harassment can only be committed by a person who has a supervisory position over the employee. This can mean a direct supervisor, or even the company’s CEO. The key factor is whether the person making the sexual advances had the power to take a negative employment action against the employee for refusing them.
What Can You Do If You Have Experienced Quid Pro Quo Sexual Harassment?
Being subjected to any type of sexual harassment can be incredibly difficult and dehumanizing. As such, people who experience quid pro quo sexual harassment often struggle with how to handle it, particularly because they fear retribution for reporting the harassment.
If a supervisor does make a sexual advance on you and either threatens or promises something related to your employment, the first step that you may choose to take is to file a report at work. You may do this with a more senior supervisor or a Human Resources employee (if you have a HR department). This helps to create a record of the quid pro quo sexual harassment and gives your employer an opportunity to take action.
Filing a report of the harassment at work can also help should you decide to file a lawsuit against your employer. By making a report in writing, it prevents your employer from arguing that you failed to take advantage of its anti-harassment programs or failed to notify them of the harassment entirely (yes, companies actually do that). It also allows you to show that your employer failed to take reasonable steps to prevent the harassment and/or prevent it from continuing.
Many people fear reporting quid pro quo and other forms of sexual harassment out of concern that they will be retaliated against or even fired. Under California law, it is illegal for employers to fire employees who complain about workplace harassment of any kind, including sexual harassment. If your employer does retaliate against you, then you will have an additional cause of action against them.
If your employer does not adequately address the harassment, you may also file a complaint with California’s Department of Fair Employment and Housing (DFEH). Doing so is required before you can file a lawsuit against your employer. A complaint must be filed within 3 years of the illegal harassment.
The DFEH will either issue a “right to sue” notice, which gives you permission to file a civil lawsuit, or it will investigate and prosecute the matter on your behalf. A lawsuit must be filed within 1 year of the issuance of a right to sue letter.
California employment law is complex, with specific rules and procedures that must be followed and deadlines that must be met. While our society has evolved in many ways, sexual harassment remains a persistent problem across California workplaces. When a supervisor explicitly or implicitly conditions a term of employment on complying with their sexual advances, that is quid pro quo sexual harassment — and it is illegal.
The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Odell Law, PLC. or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.