We know that in recent months allegations of sexual harassment have been on the rise. Employers, wanting to be proactive, are taking steps to learn more about sexual harassment and what they can do to protect their employees from such conduct and their companies from liability if allegations surface. As explained in a prior article, there are two types of actionable sexual harassment: 1) hostile work environment and 2) quid pro quo. Hostile work environment sexual harassment was discussed in the earlier article, so this article will cover what constitutes quid pro quo sexual harassment and how employers can protect against it.
The Latin phrase "quid pro quo" means "this for that." Quid pro quo sexual harassment, can take two forms: 1) when job benefits, such as employment, promotions, pay increases, bonuses/benefits, or preferred shifts or assignments are conditioned upon the performance of sexual favors by the employee for his/her supervisor or someone in a decision-making role, and; 2) when the rejection of such requests for sexual favors or advances results in a tangible employment action that is damaging to the employee, such as pay decrease, reassignment, loss of benefits, or demotion. Put in general terms, quid pro quo sexual harassment occurs where a supervisor attempts to leverage his/her position of power to obtain sexual favors in exchange for some job benefit to the victim or threatens some job detriment if the victim does not comply.
To prevail under the quid pro quo theory of sexual harassment a plaintiff must assert and prove the following: (1) that the employee was a member of a protected class; (2) that the employee was subjected to unwelcomed sexual harassment in the form of sexual advances or requests for sexual favors; (3) that the harassment complained of was based on sex; (4) that the employee's submission to the unwelcomed advances was an express or implied condition for receiving job benefits or that the employee's refusal to submit to the supervisor's sexual demands resulted in tangible job detriment; and (5) the existence of respondeat superior liability. Kauffman v. Allied Signal, Inc., Autolite Div. (C.A.6, 1992), 970 F.2d 178, 186, citing Highlander v. KFC Natl. Mgt. Co. (C.A.6, 1986), 805 F.2d 644, 648. When the alleged harasser is a supervisor with immediate or higher authority over the employee, and when the harassment culminates in a tangible employment action against the plaintiff, the employer is subject to vicarious (strict) liability and the analysis ends. Burlington Indus., Inc. v. Ellerth (1998), 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633; Faragher v. City of Boca Raton (1998), 524 U.S. 775, 807-808, 118 S.Ct. 2275, 141 L.Ed.2d 662. What this means is if sexual harassment is found to exist and the harasser is a supervisor, the employer is strictly liable. If liability is found, the cost to the employer could be significant. Remedies for a quid pro quo sexual harassment victim include compensatory damages, future economic loss, back pay, losses associated with claims for emotional distress and potentially punitive damages.
It is easy to identify overt quid pro quo sexual harassment. For example, where a manager asks an employee for sexual favors and then refuses to schedule the employee for work hours when the requests are refused, courts have found this to be sufficient evidence to overcome an employer's motion for summary judgment. Kinnison v. Advanced Stores Co., Inc., 2003-Ohio-3387 (2003). In Kinnison, the court further clarified that the individual claiming harassment need not be an employee, but could also be a job applicant.
Action, however, do not have to be overt to be considered quid pro quo sexual harassment. In Harmon v. Belcan Engineering Group, Inc., 119 Ohio App.3d 435 (1997), a manager commented on an employee's appearance, invited her to dinner, occasionally placed his arm around the employee's waist, attempted to kiss the employee on two occasions and discussed his desire to find a woman with whom he could have a good sexual relationship. After the manager promoted the employee to a position for which she lacked some qualifications, the employee confronted the manager and asked about his motivations for promoting her, making it clear she had no interest in him. Immediately following this conversation, the manager's treatment of the employee changed. The employee was struggling in the position and asked to be moved to a different position. Even after she changed positions, her former manager continued to exert his influence and eventually, the employee was terminated. The court found that there was enough of a nexus between the manager's conduct, the employee informing him she was not interested and the tangible employment action for the matter to be heard by a jury. The situation was similar in Foster v. Ohio Bell Tel. Co., 2009-Ohio-6465 (2009), except that the alleged victim was a male employee who ignored and refused attempted advances by his female managers and was repeatedly passed up for promotions.
Again, the question all employers should be asking is what can they do to protect their employees and their companies from sexual harassment? Education and training are the answers. You've heard it before, but it is worth hearing again. Make sure your company has a written sexual harassment policy and that it is given to employees. Make sure your employees and supervisors are trained on the company's sexual harassment policy. Make sure supervisors know what to do when they receive an allegation of sexual harassment. Make sure appropriate action is taken following an allegation and/or investigation. Finally, make sure you foster a positive work environment for all employees.