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Quid Pro Quo Harassment

California law provides employees with protection against sexual harassment. Workplace sexual harassment is any unwanted, inappropriate or negative conduct directed at a worker based on sex related reasons, such as gender, sexual orientation, pregnancy, and marital status. Quid pro quo sexual harassment is a specific type of harassment which deals with sexual favors in exchange for work-related benefits. The term quid pro quo is Latin for 'this for that' and usually involves a supervisor or employer requesting that an employee submits to some sexual act in order to receive a work benefit.

Sexual harassment in the workplace is more prevalent than ever and the law provides equal protection for men and women (and other gender identifications) alike. As such, women who engage in sexual harassment will be prosecuted to the same extent as men who do the same. Same-sex sexual harassment is also equally unlawful.

Quid pro quo harassment can take one of two forms, namely:

  • Offer: An employer offers the worker a benefit on the condition that the worker submits to the sexual favor, i.e. "If you do [sexual favor] for me, I will give you a raise."
  • Threat: An employer threatens the worker with a negative work related action unless the employee gives in to the employer's demands, i.e. "If you don't do [sexual favor], I will have you fired."

Inappropriate discussion of sexual acts, comments on the employee's body and its potential sexual uses and other unwanted sexual advances are often major parts of quid pro quo cases. Violations can be committed in and implied or expressive manner and even a mere hinting at how sexual favors can be exchanged for job benefits may be grounds for a quid pro quo harassment claim.

Most often, quid pro quo harassment is a serious legal violation, and a single instance can be sufficient to bring a lawsuit, provided the employee can prove that a negative employment action resulted from his or her refusal to agree to the employer's sexual demands.

By contrast, hostile work environment sexual harassment is pervasive and results in an abusive workplace. This form of harassment does not have to be motivated by a supervisor or employer's sexual desire to be considered unlawful, but the employee must be able to show that improper conduct happens frequently, that it is severe, or both.

This category of sexual harassment must be objectively abusive or hostile to be considered in violation of the law, and a few mildly offensive or annoying comments usually do not suffice.

Additionally, the victim must be subjectively offended, distressed and humiliated by the sexual harassment. If a victim purposely invited the harassment or if he or she was emotionally unaffected by it, they cannot claim that the work environment was hostile. Genuine suffering can usually be proven by demonstrating that:

  • the harassment undermined the individual's ability to perform at his or her normal standard in the workplace;
  • the harassment affected his or her sense of wellbeing;
  • the harassment had a negative impact on the individual's emotional tranquility in the workplace.

Repeated unlawful conduct is usually required for the above criteria to be met. A pattern of harassment has to be established, although some courts have suggested that a severe violation, such as physical assault or rape is sufficient to support a claim.

California courts consider a range of factors to determine whether a work environment is sufficiently abusive or hostile. These factors include:

  1. Context of Inappropriate Conduct: This factor allows the courts to examine all the circumstances relating to the sexual harassment. The court may find that other circumstances beyond mere improper conduct render it less or more egregious. Sexual harassment must meet a 'reasonable person standard' for it to be considered unlawful. Unwelcome sexual harassment is offensive to the complainant, and this is considered the subjective standard. Another standard, known as the reasonable person standard goes to the context of the circumstances surrounding the harassment. Someone who has experienced sexual assault in the past may experience greater distress as the result of sexual harassment in the workplace. 
  2. Frequency of Inappropriate Conduct:  Mildly offensive conduct can be considered unlawful if it is repeated frequently enough. These types of activities may be considered pervasive if they happen more often than occasionally. As such, the court may attempt to calculate the number of times such behavior occurred.
  3. Severity of Inappropriate Conduct: Particularly egregious conduct - including non consensual physical contact - is considered more likely to be considered unlawful than mild misconduct. As such, particularly egregious conduct does not have to occur as frequently to reach the pervasive standard.

EAch case is considered on its own merits, and the court will determine whether the workplace is hostile.

What is Sexual Harassment and Quid Pro Quo Harassment, Exactly?

It can be difficult to understand the definitions and implications of sexual harassment, hostile work environment and quid pro quo sexual harassment in the workplace. When it comes to hostile work environment claims, the law does not define exactly what type of conduct it considers pervasive and what is considered severe. For that reason, California courts typically look to prior cases and the fact patterns they followed. The following examples may help you to determine where the court will draw the line.

Sexual Harassment - There are countless forms of sexual harassment, and connected devices and social media make it easier than ever for people to harass others. Employers, workers and coworkers are connected via social media and they communicate via text, email and phone, which makes it easy for them to behave inappropriately. Common sexual harassment violations include:

  • showing favoritism for sexual reasons;
  • making derogatory comments, telling inappropriate sexual jokes, epithets, name calling, and using innuendo;
  • visual harassment such as signs and posters;
  • physical harassment and threats, including unwanted physical contact;
  • work performance interference;
  • implied or virtual threats of a sexual nature and
  • repeated or aggressive requests for sexual favors.

This type of harassment is unlawful, even if it is not motivated by sexual desire. Although it often is sexually motivated, it may also be motivated by personal gratification, bigotry and meanness.

Quid Pro Quo - Inappropriate Propositions

It is not uncommon for co-workers and even employers to make inappropriate propositions in the workplace. A single invitation to go on a date typically does not constitute sexual harassment, but it can become a valid claim for unlawful sexual harassment if:

  • the same person makes repeated advances; or
  • if the victim suffers work-related penalties when the advances are rejected.

California law also strictly prohibits offers or threats of employment-related benefits or punishment in exchange for sexual favors.

It is important to remember that propositions that are implied by conduct or words can be unlawful, even if they are not directly spoken.

Only senior company officials (supervisors, managers) that are in a position or authority which enables them to take tangible employment actions against the victim  can commit quid pro quo sexual harassment. Coworkers at the same level of employment can only be found guilty of sexual harassment that creates a hostile work environment.

Sex-Based Discrimination: Unequal Treatment and Favoritism

Sex-based discrimination is prohibited under California law. This type of conduct usually involves supervisors or employers:

  • rewarding those employees who submit to their requests for sexual favors; and
  • punishing those employees who refuse to submit to sexual favors.

Isolated instances of favoritism are usually not considered unlawful sexual harassment. However, there is often a fine line between job-motivated sexual favor and consensual sexual conduct (an affair).

Widespread sexual favoritism can quickly escalate to create a hostile work environment. Employees may feel:

  • that management views them as sexual objects;
  • that they are expected to submit to sexual favors in order to advance in their careers.

Sexual Harassment Training: Employer Requirements

The Fair Employment and Housing Act requires that employers with fifty or more California-based employees conduct regular sexual harassment training. Supervisor level employees must undergo two hours of sexual harassment training every twenty-four months. Newly hired supervisors must undergo training within the first six months of appointment.

Additionally, employers must provide training on how employees can prevent abusive conduct in the workplace, in order to prevent workplace bullying based on protected classes. This type of bullying is not only illegal, but it is also harmful to employees.

By failing to comply with California state sexual harassment training requirements, employers expose themselves to compliance issues, should this fact be raised in a sexual harassment lawsuit. If the victim can show that the employer failed to take reasonable steps to either prevent or correct sexual harassment in the workplace, the employer can be held liable.

Regular sexual harassment training can encourage supervisors to take steps to prevent it, which will ultimately create a happy and productive workplace and it can reduce the possibility of quid pro quo sexual harassment claims.

What Can a Victim of Quid Pro Quo Sexual Harassment Do?

If you have experienced quid pro quo sexual harassment in the workplace, you may be entitled to a various damages, but it is important to follow the correct remedies. There are three basic options available to you:

  1. Approach your employer and attempt to resolve your dispute informally;
  2. Seek damages by bringing an administrative claim;
  3. File a lawsuit with the California courts.

It is important to note that you have to file a written complaint with the California’s Department of Fair Employment and Housing (DFEH) before you can take your suit to the court and await their "Right to Sue" letter. You have up to one year from the date of the violation to file your complaint with the DFEH, and a year from the date on which the right-to-sue letter is issued to bring your lawsuit against your employer in civil court.

As with many legal matters, exceptions apply to the time limits. Federal cases may have different timelines, which is why it is important to speak to a lawyer right away to find out about the time limits.

In some cases, you may have to exhaust all three options. It is usually a good idea to discuss your options with an employment lawyer who specializes in sexual harassment in the workplace. The law is complex and cases are rarely straightforward. Each of the above options has its own advantages and disadvantages and a lawyer will be able to advise you on the right path for your case and whether you are entitled to:

  • reinstatement of employment
  • compensatory damages (past and future pay)
  • punitive damages (pain and suffering).

An employment lawyer can help you to collect all the legally-relevant information for your case, apply the law to the facts and evidence, and maximize your entitlement to financial damages. Most importantly, a lawyer has the experience and knowledge help you avoid strategic pitfalls.

Quid Pro Quo Cases and Retaliation

It's only natural to be concerned that your employer may retaliate against you for pursuing a quid pro quo sexual harassment claim. California law strictly prohibits employers from wrongfully terminating employees or taking otherwise adverse employment actions for opposing the employer's violations.

The same rights extend to other employees who testify or assist in proceedings relating to claims against the employer.

Get Help With Your Quid Pro Quo Sexual Harassment Case

Is your employer or supervisor pressurizing you to perform sexual acts in exchange for employment privileges? Are you being harassed by your co-workers, supervisors and employers? Speak to an experienced workplace sexual harassment attorney about your rights and the merits of your case, and find out what your entitlements are based on the specific circumstances.

Call 800-905-1856 today to schedule an initial case assessment with a California sexual harassment attorney who specializes in employment law.

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