As if understanding the law isn’t hard enough, there are times when you have to speak Latin to understand what is going on. Because our legal system traces some of its roots back to ancient Rome, you’ll often come across Latin phrases in the law like caveat emptor, ex parte, and habeas corpus. In the employment discrimination law area, one of the most important Latin phrases to understand is “quid pro quo.” Quid pro quo translates roughly to “something for something,” and in the context of sexual harassment, it is used as a short-hand way of referring to those claims where employment decisions are conditioned on an employee’s submitting to sexually harassing conduct.

In today’s posting, we’ll talk about what a quid pro quo sexual harassment claim involves and provide a few examples of what these types of claims look like. If you’d like to understand more about these types of sexual harassment claims and how they might apply in your own case, please contact us.

Elements of a Quid Pro Quo Sexual Harassment Claim

As we’ve discussed in prior posts, sexual harassment is a form of gender discrimination that is illegal under federal law as well as many state and local laws. All sexual harassment claims involve some form of unwelcome sexual conduct. From there, sexual harassment claims typically fall into two categories: (1) hostile work environment claims and (2) quid pro quo claims. For more information about hostile work environment claims, check out our posting, “What is a ‘Hostile Work Environment’?”

In quid pro quo claims, a person in a supervisory capacity subjects an employee to unwanted sexual conduct in exchange for some beneficial employment action.

Who Is the Harasser in a Quid Pro Quo Claim?

The harasser in a quid pro quo claim typically must have some supervisory authority over the victim. Because the basis of a quid pro quo claim is that an employee is given some employment benefit in return for submitting to sexual conduct, the harasser must be someone who is in a position to provide that benefit to the employee. That’s not to say that sexual harassment by co-workers, contractors or customers can’t also create a legal claim, but those situations more often fall within the hostile work environment theory of sexual harassment.

What Type of Conduct is Involved in a Quid Pro Quo Claim?

The harasser in a quid pro quo sexual harassment claim must subject the victim to unwanted sexual conduct. The key pieces to this element are that the conduct must have been of a sexual nature and must have been unwanted by the victim. The conduct can be verbal or physical, with a supervisor subjecting the employee to anything from offensive jokes to physical groping and sexual acts in return for some beneficial employment action.

Whether the conduct was unwanted is determined by the facts around the harassment, and specifically courts will look at the victim’s own conduct during the time of the harassment. Even if the victim ultimately participated in the act, it can still be considered unwanted depending on the employee’s other actions surrounding the event, including whether the employee objected to the conduct either directly to the harasser or otherwise through their employer.

What Types of Employment Actions Are Typically Taken?

As part of a quid pro quo sexual harassment claim, the supervisor must have conditioned a job benefit or made an employment decision based on the victim’s submission to or rejection of the unwanted sexual conduct. Examples of the types of employment actions typically involved in a quid pro quo claim include hiring, firing, promotions, demotions, and decisions about compensation. The supervisor does not have to explicitly offer the employment benefit at the time of the harassing conduct, so long as the facts show that an employee’s acceptance or rejection of the sexual conduct was later used as part of the employment decision.

Examples of Quid Pro Quo Sexual Harassment

Quid pro quo claims can arise any time, starting with hiring decisions and ending with termination. For example, a job candidate could come in for an interview with the head of the department in which she would be working, and during the interview, the department head proceeds to grope the candidate and ask her “How badly do you want this job?”

Next, take the example of an employee who has been continually subjected by her supervisor to remarks about her body and sexual jokes. The employee tells her supervisor to stop and has reported his actions up the chain. When it comes time for annual performance reviews and promotions, the supervisor gives the employee a bad review and passes her over for promotion because she did not “play along” with him.

Another example could be an employee on a business trip with his supervisor. While staying at the same hotel, the supervisor comes to his room to talk about a presentation they are preparing to give but quickly starts making sexual advances on the employee. The employee steps away from his boss and asks her to leave his room. The supervisor responds, “Come on. I’d hate to see you lose your job.”

The employees in each of these examples could have a quid pro quo sexual harassment claim against their employer, though the incidents happened at different times in the employment process, in different places, and with differing degrees of explicitness on the part of the supervisor.

Contact an Attorney

If you suspect you’ve been the victim of quid pro quo sexual harassment, we encourage you to contact an attorney immediately. Quid pro quo cases often are not as clear as the examples above, and it can take an experienced sexual harassment attorney to help you understand the strength of your claims and your legal options. At Eisenberg & Baum, our attorneys have decades of experience handling sexual harassment cases in New York and are ready to help you with your claim. We offer free initial consultations for sexual harassment claims and bill on a contingent fee basis, so you won’t have to pay us unless we win or settle your case.