“Quid Pro Quo” Sexual Harassment: What Is It?

“Sexual harassment” is one type of unlawful discrimination based on “sex” under various statutes, including Title VII of the Civil Rights Act of 1964.

The term “quid pro quo” is a Latin phrase that means “this for that”. In the context of employment discrimination/sexual harassment law, it has a specific meaning.

“Sexual harassment claims are typically pursued under two legal theories: hostile work environment, where an individual is subject to severe and pervasive discriminatory conduct altering his conditions of employment, and “quid pro quo” sexual harassment, where an individual’s tangible job benefits are directly premised on submission to unwelcome sexual conduct.” Irons v. Bedford-Stuyvesant Cmty. Legal Servs., 2015 WL 5692860 (E.D.N.Y. Sept. 28, 2015).

The Irons court elaborated:

The distinction between the two forms of sexual harassment serves to instruct that Title VII is violated by either explicit or constructive alterations in the terms or conditions of employment and to explain [that] the latter must be severe or pervasive. The distinction between the two theories is “useful to distinguish between ‘cases involving a threat which is carried out and offensive conduct in general. The gravamen of a quid pro quo claim is that a tangible job benefit is linked to an employee’s acceptance or rejection of a supervisor’s sexual advances. Irons, 2015 WL 5692860, at *13, fn.18.

The Guidelines established by the Equal Employment Opportunity Commission (“EEOC”) define quid pro quo sexual harassment as follows:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, [or] (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual. 29 C.F.R. § 1604.11(a)(2).

As explained by the court in Britt v. Thermald Realty I, LP, No. 13 CIV. 8289 KPF, 2015 WL 4922977 (S.D.N.Y. Aug. 18, 2015):

When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable[.] To establish a prima facie case of what is commonly termed quid pro quo harassment, a plaintiff must present evidence that [he or she] was subject to unwelcome sexual conduct, and that [his or her] reaction to that conduct was then used as the basis for decisions affecting the compensation, terms, conditions or privileges of [his] employment. In general, a tangible employment action for purposes of this analysis is a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. A tangible employment action in most cases inflicts direct economic harm, but there is no requirement that it must always do so.

When assessing these claims, courts require proof connecting the “tangible employment action”, on the one hand, with the plaintiff’s response to sexual conduct/demands, on the other.

In the Britt case, for example, the court dismissed plaintiff’s “quid pro quo” sexual harassment claim, citing the fact that plaintiff did not testify or aver that his “refusal to submit to [the alleged harasser]’s sexual advances resulted in her changing the terms or privileges of his employment” and the “lack of temporal proximity” between plaintiff’s 2007 refusal to have sex with his alleged harasser and his 2013 termination.

A contrary example is Lashley v. New Life Bus. Inst., Inc., No. 13 CIV. 2683 BMC, 2015 WL 1014128 (E.D.N.Y. Mar. 9, 2015), where the court upheld a jury verdict that the male plaintiff suffered “quid pro quo” sexual harassment by his female boss. The court noted, among other things, the short time period (about two months) between plaintiff’s termination and his rejection of his boss’ sexual advances.