last updated February 2019
In the United States, quid pro quo harassment is the most commonly recognized form of sexual harassment. It occurs when (1) job benefits, including employment, promotion, salary increases, shift or work assignments, performance expectations and other conditions of employment, are made contingent on the provision of sexual favors, usually to an employer, supervisor or agent of the employer who has the authority to make decisions about employment actions, or (2) the rejection of a sexual advance or request for sexual favors results in a tangible employment detriment, a loss of a job benefit of the kind described above.
This form of harassment is often prohibited as a matter of criminal law (the crime in some cases is labeled "abuse of power"), as a form of sex discrimination or as a violation of labor or tort law.
For quid pro cases, a plaintiff does not need to prove that the conduct was severe or pervasive, because the tangible employment action itself is actionable.[1] In a quid pro quo case, once the plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands, the employment decision itself constitutes a change in the terms and conditions of employment that is actionable, whereas in a hostile work environment case, including cases where a supervisor’s threats are unfulfilled, the plaintiff must show severe or pervasive conduct.[2]
Once a sexual harassment claimant establishes a prima facie case of quid pro quo sexual harassment, employers generally have the burden of proving that the harassment did not occur or that it occurred for legitimate, non-discriminatory reasons.[3] If the employer is able to provide a legitimate reason for its actions, the employee must then establish that the reasons provided by the employer are not the real reasons for the employment decision and are merely a pretext for unlawful discrimination.
Employers are generally held strictly liable for quid pro quo sexual harassment because supervisors, managers and agents who perpetrate quid pro quo harassment are deemed to be acting directly on behalf of their employer.
The U.S. Supreme Court has held that an employer is always liable for a supervisor or manager's harassment if it results in a tangible employment action. Tangible employment actions include demotion, firing, or unfavorable changes in work assignment.[4] An employee resignation may also constitute a tangible employment action under the constructive discharge doctrine if the employee can show the "abusive working environment became so intolerable that her resignation qualified as a fitting response.”[5]
Remedies for victims of quid pro quo sexual harassment may include recovery of compensatory damages such as medical expenses, future economic loss, loss of enjoyment of life, and back pay. Punitive damages may also be awarded if the claimant establishes that the employer acted with malice or reckless indifference to her or his rights.
Some mechanisms, policies, and strategies are described in the Prevention discussion in this Sexual Harassment section.
[1] See, e.g., Okoli v. City of Baltimore, 648 F.3d 216, 225 (4th Cir. 2011) (Wynn, J., concurring) (discussing differences between hostile work environment and quid pro quo claims).
[2] Lutkewitte v. Gonzales, 436 F.3d 248, 260 (D.C. Cir. 2006).
[3] See Sparks v. Pilot Freight Carriers, Inc., 830 F. 2d 1554, 1564 (11th Cir. 1987); Jones v. Flagship Int'l, 793 F. 2d 714, 721-722 (5th Cir. 1986), cert. Denied 479 U.S. 1065 (1987).
[4] Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998); and U.S. Equal Employment Opportunity Commission, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, Notice No. 915.002 (June 18, 1999).
[5] Pennsylvania State Police v. Suders, 542 U.S. 129 (2004).