The Federal Equal Employment Opportunity Commission (EEOC) listed preliminary 2018 fiscal year information in the final 4th Quarter relevant to sexual harassment in the workforce. Although preliminary, the numbers are alarming considering that most all of the cases, have serious allegations of “Quid Pro Quo Harassment” as a main component to the victims complaint. Current data shows that approximately 66 cases were filed with 41 of those containing sexual harassment allegations. One would think in 2019 that employees and employers, especially those in management positions, that quid pro quo sexual harassment is definitely a violation of the law, let alone a company’s policy.
The Latin term “Quid pro quo” translates to basically, “something for something,” the legal definition for Quid pro quo is the mutual consideration that passes between two parties to a contractual agreement, thereby rendering the agreement valid and binding. In sexual harassment cases, quid pro quo is a form of blackmail. Quid pro quo sexual harassment is the offer of employment benefits on an employee’s submission to unwelcome sexual conduct and the rejection by the victim, which unfortunately ends in termination of that person’s employment. Most state courts follow the EEOC guidelines that state the request for sexual submission must be an unwelcome sexual advance and “is made either explicitly or implicitly a term or condition of an individual’s employment” or if submission to unwelcome sexual advances “is used as the basis for employment decisions affecting such individual” (29 C.F.R. § 1604.11(a) (1)-(2) ) conditions or continued employment. In addition to the victims compliant, the courts should evaluate whether the harassment is sufficiently “severe or pervasive” and be objective from the standpoint of a “reasonable person.”
A typical example of a quid pro quo harassment can begin as an innuendo suggesting a sexual favor in exchange for an increasingly more suggestive comments or conversation of a sexual nature, verbal, physical or other conduct. So here, Johnny the Regional Manager of the ABC Company, anywhere USA has a great working relationship with a direct report, Sally (fictitious employee names). Sally has been employed for several years and is coming up on a 5 year anniversary with the company and wants to be considered for a departmental promotion. During her annual review, Sally expressed to Johnny her desire to apply for a different but higher paying position within the company. Johnny responded with an innuendo suggesting that if Sally wanted to be considered for the position she, “needed to do something special” for him and “make him happy.” Sally laughed off the comment initially as she thought he was “just kidding.” When she attempted to confirm his response as “a joke,” he smiled, raised his eyebrows and did not reply. This scenario is a typical start to the progressive behaviors and inappropriate conversations that lead to a blatant violation of the law and local and or federal EEOC complaints. Quid pro quo always starts somewhere in a testing form and if not shut down from the absolute beginning, will escalate to where actual demands for sexual favors in exchange for employment status will occur.
California Law & Quid Pro Quo Harassment
In California the law governing workplace sexual harassment is the Fair Employment and Housing Act (FEHA) CA government code, 12940 GC, and has specific elements to base a quid pro quo harassment claim of sexual harassment. A single incident may be severe enough to trigger a claim, especially if it originated from a direct supervisor, or anyone in a higher-power position and resulted in a tangible and negative employment action to the victim as a result of denying the request of any “this for that.”
Many employers observe red flags that indicate possible symptoms of a quid pro quo harassment between a supervisor and a subordinate employee but do not report the behavior as the victim has not come forward to make a compliant or even ask to speak to someone in human resources. Frequently, the inappropriate behavior is with that person’s direct supervisor and they do not know who to complain to or whether they should just choose to deal with the circumstance themselves. Some indicators to watch for are basic in nature; the caution here is, that it may not always be a quid pro quo situation, but best to error on the side of caution and bring the matter forward to a designated manager. Examples may be, a new employee receiving preferential treatment in their job duties, exorbitant pay increases outside of the usual company trends, rumors of a relationship between a supervisor and a subordinate, an abrupt departure of a high respected over-achiever for no apparent reason.
In a 2018 claim, Rice v. Smithtown Volkswagen, the plaintiff not only alleged many “quid pro quo” sexual harassment situations but obvious hostile work environment and retaliation when she was terminated as a result of turning down solicitations for sexual advances by the company’s owner. In this case the employee actually reported the conduct to the general manager after the advances and lewd pictures sent became more serious and attached to promises of “job security.” Shortly after the complaint, the general manager was ordered by the owner to terminate the plaintiff. This termination was obviously in retaliation towards the denials for sexual advances made of behalf of the owner.
For all employers, the lesson here is that we need to ensure all sexual harassment training for employees include a clear definition, provide examples and show what potential liabilities could be for supervisors, managers and owners in quid pro quo harassment cases. Here at Compliance Training Group we consistently present on topics that are mine fields for human resources and employers of all sizes to provide trainings that are effective, provide litigation support solutions and reflect the company’s culture and what is acceptable regarding state and federal laws. We provide nationwide trainings and are compliant with all states requirements. Visit our website www.ComplianceTrainingGroup.com or call for more information 800-591-0471.
About the Author
Patricia Kotze is Vice President of Commercial & Government Services and Sr. Executive Trainer Director for Compliance Training Group, a provider of workplace compliance training services and products for executives, supervisors, and employees. Patricia possesses over 16 years of experience conducting workplace investigations and live training sessions.
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