Quid pro quo is a Latin phrase that means “this for that.”1 Like the name implies, quid pro quo sexual harassment occurs when sexual favors are requested or demanded in exchange for a specific job benefit.2
A direct supervisor says to a subordinate employee: “If you perform a sex act with me, I will give you a raise.”
Generally, quid pro quo sexual harassment appears in one of two forms:
- An employer or supervisor offers an employee some kind of benefit which is conditioned upon the employee submitting to a sexual favor;3 or
- An employer or supervisor threatens an employee about some sort of work-related action, like a threat of termination, unless the employee submits to certain sexual demands.4
Quid pro quo cases often involve unwanted sexual advances, inappropriate discussions of graphic sexual acts, or commentary on the employee’s body and the sexual uses to which it could be put.5
These kinds of violations can committed either expressly or impliedly. Merely hinting at a job benefit in exchange for sexual favors can constitute quid pro quo sexual harassment.6
Quid pro quo sexual harassment is usually a serious legal violation. Even just one instance of quid pro quo harassment can be enough to bring a lawsuit, as long as a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands.7
Contrast: Hostile Work Environment Sexual Harassment☍ Click to Copy a Link to This Chapter
Quid pro quo sexual harassment can be contrasted with “hostile work environment” sexual harassment. Hostile work environment sexual harassment is conduct that is so pervasive that a abusive work environment is created. This type of harassment is unlawful regardless of whether it is motivated by sexual desire.8 But the improper conduct must be severe, frequent, or both.9
Sexual harassment of this sort only violates the law if the conduct is objectively hostile or abusive. A few annoying or mildly offensive comments are usually not enough.10
The sexual harassment must also subjectively offend, humiliate, or distress the victim.11 A person cannot claim that they experienced a hostile work environment if they were emotionally unaffected by the harassment or if they purposefully invited it.12 To prove that the victim suffered, they must usually demonstrate one or more of the following:
- The harassment disturbed their emotional tranquility in the workplace,
- The harassment affected their ability to perform her job as usual, or
- The harassment interfered with and undermined their personal sense of well-being.13
Meeting this test usually requires there to be repeated instances of unlawful conduct.14 Although some courts have suggested that one severe violation (like a rape or a physical assault) is enough to support a claim of hostile work environment sexual harassment,15 most cases have required the victim to show a pattern of harassment.16
Courts in California use several factors to determine whether the work environment is sufficiently hostile or abusive:17
- Severity of the Conduct. Conduct that is particularly bad (like nonconsensual physical touching) is more likely to be unlawful than mild conduct. The worse the conduct is, the less frequently it needs to occur in order to meet the threshold of “pervasive” conduct.
- Frequency of the Conduct. Even mild behaviors can be unlawful if they happen frequently enough. Improper activities that happen often are more likely to be considered “pervasive” than those that happen once every other month. Some California courts will even attempt to count or approximate the total number of days on which the conduct occurred.
- Context of the Conduct. Under this factor, all of the circumstances surrounding the harassment can be examined. In some cases, there may be circumstances beyond the improper conduct that make it more or less egregious. For example, the conduct may be less egregious if it only took place outside of the workplace.
The weight of each factor will depend heavily on the facts of the case. And, while these factors are helpful in assessing whether a hostile work environment may be present, it is ultimately the court that makes the determination.
Gender is Irrelevant☍ Click to Copy a Link to This Chapter
Both categories of workplace sexual harassment laws protect men and women equally (as well as any other gender identifications). As such, sexual harassment perpetrated by women is unlawful to the same extent it would be for men.18
Moreover, sexual harassment is unlawful even when the victim is the same gender as the aggressor.19
Examples of Quid Pro Quo Sexual Harassment☍ Click to Copy a Link to This Chapter
The tests defining “sexual harassment” can be a little difficult to understand. This is particularly true for hostile work environment claims because there is no clear rule defining which conduct is severe or pervasive. As such, when analyzing an allegation, many courts rely on the fact patterns of prior cases. These examples can help clarify where courts draw the line in determining whether conduct is unlawful.
Propositions are relatively common in the workplace. In general, a single request to go on a date does not amount to sexual harassment.20 There may, however, be a valid claim of sexual harassment if the employee is subjected to repeated advances by the same person or if the employee is punished for rejecting an advance.
In one case, an employee was asked out on a date three or four times by a coworker.21 Each time, the employee rejected the request. Some time later, the coworker described his sexual fantasies about the employee to her.22 Upset, the employee complained to her supervisor about the coworker’s conduct. After that, the coworker began to stare at her angrily several times each day.23
The court in that case held that the coworker’s initial propositions could potentially constitute overt acts of sexual harassment. Likewise, the coworker’s prolonged campaign of staring at the employee could potentially constitute unlawful retaliation.24 An employer in such a situation could be potentially liable for unlawful sexual harassment.
Another clearly-prohibited behavior in California is the offering of employment or employment benefits in exchange for sexual acts. As mentioned above, these kinds of offers or threats are unlawful quid pro quos.25
Importantly, inappropriate propositions do not have to be directly spoken to be unlawful; they can be implied by words or conduct.26 This can occur when a supervisor or other superior implies that their subordinate will get ahead in the workplace through sexual acts.
Favoritism and Unequal Treatment
California law prohibits sex-based discrimination.27 In the context of sexual harassment, this kind of discrimination can occur when supervisors reward employees with whom they are having sex or punish those who refuse to have sex with them.
In general, isolated instances of favoritism toward an employee with whom the supervisor is having a sexual affair would not constitute unlawful sexual harassment.28 These situations, however, often blur the line between consensual sexual conduct and job-motivated sexual favors.
When sexual favoritism in a workplace is widespread, it can create an unlawful hostile work environment. In those cases, the demeaning message conveyed to employees is that they are viewed by management as sexual playthings. Or, even worse, the employees may feel that they are required to engage in sexual conduct with their supervisors or the management to get ahead in their job.29
In one such case, two female employees sued their employer for sexual harassment because their supervisor engaged in sexual affairs with three subordinate employees at the same time.30 The supervisor promised and granted unfair employment benefits to the women with whom he was having sex.31 The court held that this conduct could potentially constitute sexual favoritism widespread enough to justify a claim of hostile work environment sexual harassment.32
Handling Sexual Harassment Violations☍ Click to Copy a Link to This Chapter
Despite the clear requirements of California law, some employers still violate their employees legal rights. Employees that have experienced a violation of their right to be free from workplace sexual harassment have three basic options:
- They can attempt to resolve the dispute informally with their employer,
- They can bring an administrative claim to seek damages, or
- They can file a lawsuit in court.
In selecting one of these paths, employees should remember that they may be entitled to compensatory damages, punitive damages, or, in some cases, reinstatement to their former job.
Of course, each option has benefits and disadvantages, and some situations require employees to try all three approaches. It is often a good idea for employees to discuss their case with an employment lawyer.
Do Employees Need a Lawyer?
Employees are not required to have a lawyer to file a claim against their employer. But it is often a good idea to have one.
The law can be complex and very few cases are straightforward. Even if the facts are strong, an experienced employment law attorney can sometimes help by:
- Collecting all legally-relevant information,
- Applying the law to the evidence and related facts in a compelling way,
- Avoiding the strategic pitfalls many nonlawyers are unfamiliar with, and
- Maximizing the financial damages the employee receives.
Of course, there is no guarantee that a lawyer will be able to accomplish these things. But, when employees handle their legal disputes without representation, there is sometimes an increased risk that they will lose or severely harm their case due to legal missteps that a lawyer would have avoided.
If the employer contests the employee’s claim, which happens often, legal arguments will have to be made and evidence might need to be presented. This might occur in court or with an administrative agency, sometimes according to complicated legal procedures. It can be a good idea to have a lawyer who is familiar with doing those things.
Paying for a Lawyer
In many cases, attorneys are willing to work with no upfront costs on the part of the employee. Instead, they will take a percentage of what the employee wins at the end of the case.
It is also possible that the employer will be required to pay the employees legal fees at the end of the case. Some laws place the burden of those expenses on the employer because it is easier for them to afford it.33
So, although there is no legal requirement that an employee must have an attorney, navigating the claims process can be much easier if the employee has one. Feel free to visit the explanation of our firm’s contingent fee pricing.
State Law Claims Start with a Government Agency
When an employee decides to sue their employer, a coworker, or their supervisor for violating California’s sexual harassment laws, they must first file a written complaint with California’s Department of Fair Employment and Housing (the “DFEH”).34 Employees pursuing a claim related to sexual harassment generally cannot go straight to court with a lawsuit.35
The law treats sexual harassment as a form of sex discrimination. As such, the process for filing a sexual harassment claim with the DFEH is the same as the process for filing a discrimination complaint with the DFEH. The DFEH complaint process is explained in our article: How to File a Work Discrimination Complaint with California’s DFEH.
If, after a complaint is filed with the DFEH, the claim is not resolved, the employee will be issued a document called a right-to-sue letter.36 The employee may then pursue their case by bringing a lawsuit in court.
The Deadline to File (Statute of Limitations)
Employees are up against strict deadlines when pursuing relief for sexual harassment violations. If the employee is bringing claims under state law, they must file a complaint against the employer with California’s Department of Fair Employment and Housing (the “DFEH”) no later than one year from the date of the alleged violation.37
If the employee has gone through the administrative process and has been issued a right-to-sue letter from the DFEH, the employee with then have one year to file a lawsuit in civil court against the employer.38 This one-year clock starts ticking on the date the right-to-sue letter is issued.
There are, of course, exceptions to these time limits. And employees wishing to pursue relief under federal law may be subject to a different timeline altogether. You should speak with a lawyer immediately if you are unsure whether your claim is time-barred.
Retaliation Is Prohibited
Even though most employers follow the law, employees are often worried about the consequences of pursuing a claim against their employer. Fortunately, employers are legally prohibited from wrongfully terminating or take adverse employment actions against their employees simply because they opposed the employer’s violations of the law.39
Similarly, an employee who has suffered a violation of California’s sexual harassment laws has a right to file a complaint, testify, or assist in any proceeding in a claim against their employer. The employer may not retaliate against them for doing so.40
Cal. Code Regs., tit. 2, § 11034, subd. (f)(1) [“‘Quid pro quo’ (Latin for ‘this for that’) sexual harassment is characterized by explicit or implicit conditioning of a job or promotion on an applicant or employee’s submission to sexual advances or other conduct based on sex.”].↥
Hughes v. Pair (2009) 46 Cal.4th 1035, 1042 [quid pro quo sexual harassment is “a demand for sexual favors in return for a job benefit”].↥
Cal. Code Regs., tit. 2, § 11019, subd. (b)(2)(D) [“Harassment includes but is not limited to: . . . Sexual favors, e.g., unwanted sexual advances, which condition an employment benefit upon an exchange of sexual favors.”].↥
Burlington Indus. v. Ellerth (1998) 524 U.S. 742, 751 [118 S.Ct. 2257, 2264] [“Cases based on threats which are carried out are referred to often as quid pro quo cases, as distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment.”].↥
Cal. Code Regs., tit. 2, § 11019, subd. (b); Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414 [“A cause of action for quid pro quo harassment involves the behavior most commonly regarded as sexual harassment, including, e.g., sexual propositions, unwarranted graphic discussion of sexual acts, and commentary on the employee’s body and the sexual uses to which it could be put.”].↥
Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414 [“To state a cause of action on this theory, is it sufficient to allege that a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor’s unwelcome sexual advances.”].↥
Hughes v. Pair (2009) 46 Cal.4th 1035, 1049 [“To establish quid pro quo sexual harassment under these employment laws, a plaintiff must show ‘that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands.'”].↥
Gov. Code, § 12940, subd. (j)(4)(C) [“Sexually harassing conduct need not be motivated by sexual desire.”].↥
Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279 [“a hostile work environment sexual harassment claim requires a plaintiff employee to show she was subjected to sexual advances, conduct, or comments that were . . . sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment”].↥
Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283 [“Although annoying or ‘merely offensive’ comments in the workplace are not actionable, conduct that is severe or pervasive enough to create an objectively hostile or abusive work environment is unlawful, even if it does not cause psychological injury to the plaintiff.”].↥
Fisher v. San Pedro Peninsula Hospital (1989), 214 Cal. App.3d 590, 608.↥
Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 68 [106 S.Ct. 2399, 2406] [“The gravamen of any sexual harassment claim is that the alleged sexual advances were ‘unwelcome.'”].↥
Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App.3d 590, 608.↥
Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462 [noting that courts consider the frequency and severity of the harassment, among other factors].↥
Hughes v. Pair (2009) 46 Cal.4th 1035, 1049 [“employment law acknowledges that an isolated incident of harassing conduct may qualify as ‘severe’ when it consists of ‘a physical assault or the threat thereof.'”].↥
Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1529.↥
Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App.3d 590, 610 [“The factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred.”].↥
Gov. Code, § 12940, subd. (j).↥
Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1525 [“Under both Title VII and FEHA, sexual harassment can occur between members of the same gender as long as the plaintiff can establish the harassment amounted to discrimination because of sex.”].↥
Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 153 [isolated incidents insufficient].↥
Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 997.↥
Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 998 .↥
Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 998.↥
Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 1002↥
Hughes v. Pair (2009) 46 Cal.4th 1035, 1042.↥
Miller v. Department of Corrections (2005) 36 Cal.4th 446, 461 [the prohibition against sexual harassment includes “impliedly conditioning employment benefits on submission to or tolerance of unwelcome sexual advances”].↥
Gov. Code, § 12940, subd. (a).↥
Miller v. Department of Corrections (2005) 36 Cal.4th 446, 451.↥
Miller v. Department of Corrections (2005) 36 Cal.4th 446, 451.↥
Miller v. Department of Corrections (2005) 36 Cal.4th 446, 466.↥
Miller v. Department of Corrections (2005) 36 Cal.4th 446, 466.↥
Miller v. Department of Corrections (2005) 36 Cal.4th 446, 468.↥
Gov. Code, § 12965, subd. (b) [“In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees.”].↥
Gov. Code, § 12960, subd. (b).↥
Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724; Williams v. City of Belvedere (1999) 72 Cal.App.4th 84, 90 [“Before a person may file a civil complaint alleging a violation of this statute, he or she must first file an administrative claim with the DFEH.”].↥
Gov. Code, § 12965, subd. (b) [“If a civil action is not brought by the department within 150 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on his or her request, the right-to-sue notice.”].↥
Gov. Code, § 12960; Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492 [“As for the applicable limitation period, the FEHA provides that no complaint for any violation of its provisions may be filed with the Department ‘after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred . . . .'”].↥
Gov. Code, § 12965, subd. (d)(2).↥
Gov. Code, § 12940, subd. (h).↥
Gov. Code, § 12940, subd. (h).↥