Quid pro quo discrimination is to a specific type of discrimination that involves an employer or supervisory employee demanding sexual favors from an employee in exchange for bestowing a job-related benefit on another employee. The job-related benefit might be continued employment, i.e., the supervisor threatens to fire the employee if the sexual favor is not provided. Or, the benefit might be future raises and other perquisites of employment, or opportunities for promotion.

Quid pro quo discrimination is a kind of sexual harassment, and is identified as such under Title VII of the Civil Rights Act of 1964. Quid pro quo discrimination can include non-verbal communication and physical conduct, as well as direct, verbal requests.

The most common example of quid pro quo sexual harassment is when a supervisor offers a promotion to their subordinate employee in exchange for them providing a sexual favor.

Federal law forbids linking job benefits or retention to sexual favors, performance, behavior, or activity of any kind, and it is an abuse of power. Quid pro quo harassment includes situations in which an employee refuses to provide the requested sexual favor, and, in return, the employer or supervisor does any of the following:

  • Withholds any of the benefits of employment;
  • Threatens to terminate the employee’s employment;
  • Actually terminates the employment of the employee;
  • Makes work project opportunities conditional upon the completion of the requested sexual favor; or
  • Changes an employee’s evaluation based on the employee’s willingness to complete the requested sexual favor.

So, clearly, the perpetrator of sexual harassment has to be a person who has the authority in the workplace to make decisions about employment and the benefits of employment.

How is Quid Pro Quo Discrimination Different from a Hostile Work Environment?

The law entitles employees to a healthy work environment in which they can perform the duties of their employment. If anyone in the workplace harasses employees and makes it impossible for another employee to do their work comfortably and safely, then a hostile work environment is created. This type of harassment generally involves conduct such as unwelcome comments or conduct based on a person belonging to a protected class, such as:

  • Age;
  • Race;
  • Color or national origin;
  • Sex;
  • Disability;
  • Pregnancy; or
  • Religion.
  • Coworkers, supervisors, managers, and even clients can create a hostile work environment.

In a hostile work environment claim, the party who engages in the sexual harassment does not have to be an employer or anyone else in a position of authority over the victim. Quid pro quo harassment and discrimination are different in that the offending party in quid pro quo harassment must be an employer, supervisor, or some other person in a position to make decisions about the employment status of the victim.

in a quid pro quo case, once the victim proves that a concrete employment action was taken because the victim refused to submit to a supervisor’s demands for sexual favors, the employment decision is considered a change in the terms and conditions of employment that can serve as the basis for a lawsuit.

Several claims must generally be made, which together demonstrate repeated acts creating a pattern of behavior for a workplace to be considered hostile. However, a single quid pro quo incident is typically sufficient to establish the basis for a claim of quid pro quo sexual harassment. A sexual harassment claim may sometimes involve both quid pro quo discrimination and hostile work environment.

Are There Any Employer Defenses to Quid Pro Quo Discrimination Claims?

Some defenses are available to an employer facing a claim of quid pro quo harassment. Most of them depend on the victim of the discrimination or harassment being unable to produce sufficient evidence of the event that is the basis of the claim.

The “it didn’t happen” defense is the defense that is used most commonly. In order for a sexual harassment claim to be successful, there must substantial proof of the event that comprises the harassment. Thus, if there is not sufficient evidence to prove the harassment, the claim might not succeed.

Another defense is the “welcomeness” defense. This defense asserts that the sexual suggestions were actually wanted and consensual. Success with this defense requires strong proof that the victim both wanted and enjoyed the sexual interaction. Thus, this defense essentially asserts that the victim is lying when claiming that the events were unwelcome harassment.

Another possible option is for the employer to offer proof that the harassment or discrimination was not actually sexual in nature, or was not based on sex. If the language used was vague or ambiguous, or if the body language was considered unclear in its intent, the offending behavior may not qualify as sexual harassment. However, the plaintiff may be able to counter this with other claims, such as a hostile work environment.

What Actions Can I Take in Response to Quid Pro Quo Discrimination or Harassment?

Federal law provides that victims of quid pro quo discrimination or harassment must first exhaust administrative remedies before turning to filing a lawsuit in court. Thus, a victim of quid pro quo discrimination or harassment must first approach their employer’s human resources department to report the incident(s) in writing. If the employer does nothing to try to remedy the situation or, or if the efforts they do make do not remedy the situation, then a person may proceed with legal action.

Before filing a lawsuit, a victim must first file a claim against your employer with the Equal Employment Opportunity Commission (“EEOC”) and/or a corresponding state agency. If a claim filed with the EEOC or the appropriate state agency is successful, the person’s employer may be ordered to institute new work policies. Additionally, the EEOC may file a lawsuit against the employer on behalf of the complainant. If the EEOC does not decide to take any action for whatever reason, the victim may then file a civil lawsuit with a “Right to Sue Letter.”

When an employer is named in a lawsuit filed by a victim claiming quid pro quo harassment or hostile environment harassment, most states require the employer to prove that sexual harassment did not occur.

As an employee victimized by sexual harassment, a person generally need to present evidence to show that:

  • They experienced the conduct as hostile, abusive, or offensive;
  • Any reasonable person would agree with how the employee’s interpretation of the situation and the conduct; and
  • The employer was not only aware of the situation, but failed to take any action to stop the conduct.

A person should also remember that their employer is legally prohibited from retaliating against them for complaining or filing a claim. If a person’s employer terminates their employment after the person has filed a claim with the EEOC or a state agency or lawsuit, or participated in an investigation, a person can also sue their employer for retaliatory discharge.

Do I Need an Attorney for Quid Pro Quo Discrimination?

Workplace sexual harassment, and quid pro quo discrimination, are serious workplace problems. If you find yourself accused of sexual harassment in an EEOC claim or a lawsuit, you need to consult an experienced sexual harassment attorney as soon as possible. Or, if you are the victim of retaliation because of quid pro quo harassment, you, too, need to consult a knowledgeable employment attorney.

An experienced employment law attorney can help you gather evidence to support your case and can help you understand your best legal defenses. Finally, an experienced employment law attorney will be able to represent you in an administrative hearing or in court as needed. They can help you even if a case against you is in the investigative stage.

This is a technical and challenging area of the law, especially as the EEOC may need to be involved. You need the advice of an experienced employment attorney to get the best possible result.