Quid pro quo discrimination refers to a specific type of discrimination that occurs when an employer or supervisor demands sexual acts or favors from an employee. Additionally, that demand for sexual acts or favors is tied into job benefits, continued employment, future raises and benefits, and opportunities for advancement. 

Quid pro quo discrimination is classified as a type of workplace sexual harassment, and is recognized under Title VII of the Civil Rights Act of 1964. Quid pro quo discrimination includes non-verbal communication and physical conduct in addition to direct, verbal requests.

The most common example of quid pro quo sexual harassment is when a supervisor offers a promotion to their subordinate employee contingent upon their performing a sexual favor for the supervisor. Quid pro quo discrimination can be summed up as a case of “if you scratch my back, I’ll scratch yours.” 

It is absolutely illegal to connect 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 engage in the requested sexual activity, resulting in the employer or supervisor:

  • Withholding benefits;
  • Threatening termination;
  • Actually terminating the employee;
  • Making work project opportunities conditional upon the completion of the requested sexual favor; or
  • Altering an employee evaluation based on the employee’s willingness to complete the requested sexual favor.

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

Employees are legally entitled to a healthy work environment in which they can perform their work duties. A hostile work environment is created when anyone in the workplace engages in any type of harassment, making it impossible for another employee to safely and comfortably complete their work duties. This type of harassment generally presents 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.

A hostile work environment may be created by coworkers, supervisors, managers, or clients, to name a few. 

In a hostile work environment claim, the offending party performing the sexual harassment does not need to be an employer or anyone else in a position of authority over the victim. Quid pro quo harassment and discrimination differs in that the offending party must be an employer, supervisor, or some other higher up in relation to the victim. 

Additionally, in order for a workplace to be considered hostile, several claims must generally be made, which demonstrate  a repeated pattern of behavior. However, a single quid pro quo incident is typically sufficient to take action. It is important to note that sexual harassment claims may sometimes involve both categories.

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

There are a few defenses an employer may utilize when facing a quid pro quo claim. Most of them are contingent upon the victim of the discrimination or harassment being unable to provide sufficient evidence that the event occurred. 

The most common is the “it didn’t happen” defense. In order for a sexual harassment claim to be successful, there must substantial proof. Thus, if the harassment claim cannot be proven with evidence, the claim can be dismissed.

In a similar vein is the “welcomeness” defense. This defense implies that the sexual suggestion was actually wanted and consensual. Although this may be the case occasionally, it requires a good deal of proof that the plaintiff both wanted and enjoyed the sexual activity and suggestion. This would assert that the plaintiff is lying about the event.

An employer may be able to prove that the harassment or discrimination was not actually sexual in nature, or was not based on sex. If the language used was vague, or if the body language was considered to be ambiguous, the offending behavior may not qualify as sexual harassment. However, the plaintiff may be able to counter with other charges, such as a hostile work environment.

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

Federal and state laws dictate that victims of quid pro quo discrimination or harassment must first exhaust all administrative remedies made available to them before pursuing legal action. 

As such, you will need to first approach your employer’s human resources department to report the incident(s) in writing. If nothing is done, or if their actions do not remedy the situation, you may proceed with legal action.

Before filing a lawsuit, you must file a charge against your employer with the Equal Employment Opportunity Commission (“EEOC”) and/or a corresponding state agency. If successful, your employer may be ordered to institute new work policies. Additionally, the EEOC may file a lawsuit against your employer on your behalf. Should any of this be unsuccessful, you may then file a civil lawsuit yourself with a “Right to Sue Letter.”

When filing a lawsuit, most jurisdictions will require that the employer prove sexual harassment did not occur. As an employee facing sexual harassment, you will generally need to provide evidence proving that:

  • You found the conduct to be hostile, abusive, or offensive;
  • Any reasonable person would agree with how you interpreted the situation and conduct; and
  • Your employer was not only aware of the situation, but failed to take any action to stop the conduct.

It is imperative that you remember that your employer is legally prohibited from retaliating against your actions. If your employer terminates your employment after you have filed a charge or lawsuit, or participated in an investigation, you can also sue them for retaliatory discharge.

Do I Need an Attorney for Quid Pro Quo Discrimination?

Workplace sexual harassment, and quid pro quo discrimination, are serious offenses. If you find yourself accused of sexual harassment, or if you are experiencing workplace sexual harassment, you should consult with a skilled and knowledgeable employment attorney as soon as possible. 

An experienced employment law attorney can help you gather evidence supporting your case, or help you understand your best legal defenses. Finally, an experienced employment law attorney will be able to represent you in court as needed.