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Sexual Harassment

There are two distinct legal theories of recovery: “quid pro quo” harassment and “hostile environment” harassment.

Quid pro quo harassment exists when an agent of the employer uses supervisory power to induce a subordinate employee to grant sexual favors. The proposed exchange of job benefits for sexual favors suggests the name “quid pro quo.”

Sexual harassment also includes conduct based on sex that has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. The offensive conduct need not be sexual in nature; rather, it is actionable because it is directed against the victim on the basis of sex. This latter form of sexual harassment may or may not be perpetrated by a defendant with supervisory authority, and can originate with coworkers, subordinates or even third parties.

The theories of recovery often overlap factually, and the analytical distinctions between the two theories of recovery may blur on the facts of a given case. Our attorneys will address issues that arise under both theories. As noted below, the facts giving rise to a viable Title VII claim may also support other related theories of relief, and thus may be used when a plaintiff proceeds under a theory different from or in addition to the Title VII action.

Quid Pro Quo Harassment

Elements of Plaintiff’s Cause of Action – These are the elements you must prove to make a prima facie case for quid pro quo harassment under Title VII:

  1. You belong to a protected group under the Civil Rights Act.
  2. You were subjected to unwelcome sexual conduct.
  3. The conduct was based upon sex.
  4. Your reaction to the harassment affected a terms, conditions, or privileges of employment.
  5. There is a basis for employer responsibility, e.g., respondeat superior or direct liability on the part of the employer.
  • Membership in a Protected Group – The Civil Rights Act of 1964 expressly prohibits discrimination against any individual with respect to compensation, terms, conditions or privileges of employment on the basis of an individual’s sex. This element is only rarely disputed in sexual harassment cases.
  • Unwelcome Sexual Conduct – Quid pro quo sexual harassment involves unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. Most cases involve a supervisor demanding that a subordinate employee provide sexual favors to obtain or retain a job benefit. The sexual advance must be unwelcome. In other words, you must regard the conduct as undesirable or offensive. This element poses some of the most difficult issues of fact present in sexual harassment cases, because the plaintiff’s potential responses to the conduct could range from outright rejection to welcome acceptance.
  • Conduct Based Upon Sex – This element is rarely in dispute; cases generally hold that when an individual’s employment opportunities are contingent upon sexual participation, discrimination on the basis of gender occurs.
  • Employment Action Affecting “Term, Condition or Privilege” of Employment – You must also show a causal connection between the unwelcome sexual conduct and an adverse employment action by showing either:
    • that the adverse employment action resulted from refusal to accede to the sexual advance, or
    • that the adverse employment action was avoided only by coerced participation.

The question of whether the adverse employment decision related to the sexual advance or might be justified on independent grounds presents a question of fact that is frequently litigated in sexual harassment cases.

Bases for Employer Responsibility

Employers are liable for the actions of their supervisors in quid pro quo harassment cases.  The theory rests upon the notion that only those who have the power to pass upon job benefits or terms can engage in quid pro quo harassment. Thus, the case cannot lie if the defendant has no authority to influence employment decisions.  However, the courts have rejected employers’ arguments that supervisors who engage in sexual harassment act outside the scope of their employment, reasoning that the delegation of supervisory authority essentially “merges” the supervisor and employer.

  • Employer Defenses– As in other legal actions, the employer may defend by demonstrating the absence of a requisite element of plaintiff’s cause of action. The employer may demonstrate that no unwelcome sexual advances occurred, or that no legally cognizable job detriment followed.

Moreover, many employers dispute the causal connection between the wrongful conduct and any palpable job detriment, by seeking to demonstrate a legitimate reason for the adverse employment decision. Finally, the employer may rely on technical defenses relating to preemption, timeliness, and damage issues.

Hostile Working Environment

Elements of Plaintiff’s Cause of Action – The elements of a prima facie case for hostile environment harassment are described in order below:

  • Membership in Protected Group – The Civil Rights Act of 1964 prohibits discrimination against any individual with respect to compensation, terms, conditions or privileges of employment because of an individual’s sex. Thus, the nature of the action itself will usually dictate that the complainant can satisfy this first element.
  • Unwelcome Conduct of Sexual Nature – Since the gravamen of a hostile environment case is conduct that has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment, the range of conduct that might give rise to liability is necessarily wide. The unwelcome conduct may consist of sexual overtures, but may also include unwanted exposure to sexually oriented graffiti, vulgar language, pornography, jokes, or sexual inquiries.
  • Affecting Term or Condition of Employment – To be actionable, the harassment must be sufficiently severe or pervasive to alter a condition of the victim’s employment and create an abusive working environment. Thus, the severity and pervasiveness of the harassing conduct is a question of fact that often lies at the core of a sexual harassment claim.
  • Based Upon Sex – The hostile environment claimant must demonstrate a causal connection between the conduct and the statutory proscription by showing that but for the fact of his or her sex, he or she would not have been harassed. Accordingly, harassment that is truly gender neutral does not violate the terms of the statute.
  • Employer Liability – As noted above, in quid pro quo harassment cases supervisors are viewed as agents of the employer, and hence employer liability automatically follows if the conduct is proven. This is not always the case with hostile environment claims, because the harassing conduct may not originate with supervisory personnel. Accordingly, a hostile environment claimant must demonstrate that the employer knew or should have known of the alleged sexual harassment and failed to either prevent or correct it.

Employer Defenses

The employer may first defend by negating an essential element of the plaintiff’s case. Whether the disputed incidents occurred, and whether they were so severe or pervasive as to affect conditions of employment, pose difficult questions of fact and proof.

Next, the employer may seek to demonstrate that the conduct was not unwelcome, as required under all formulations of the Title VII test. Finally, the employer can deny that it knew or should have known of the harassing conduct, or, in all events, took adequate corrective steps. In short, the employer may seek to negate the factual basis for finding employer responsibility.


If discrimination has occurred, the court may enjoin the practice and order appropriate affirmative relief, including an award of back pay. The back pay award itself may include all compensatory elements, including profit sharing, allowances, insurance benefits, and other components of the employee’s compensation package. Note, however, that back pay liability extends no more than two years prior to the filing of the charge. The successful Title VII claimant is also entitled to prejudgment interest on the back pay award.

Under certain circumstances, front pay may also be awarded. Front pay might be appropriate when a plaintiff obtains a reinstatement order, but a comparable position is not available.

The Civil Rights Act of 1991 amended Title VII of Civil Rights Act of 1964, so that a successful claimant may also recover compensatory and punitive damages in addition to back pay and interest. It specifically provides that the complainant can recover compensatory damages for future pecuniary losses, emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses.

Punitive damages are available when the complainant demonstrates that the respondent engaged in a discriminatory practice with malice or reckless indifference to the claimant’s federally protected rights. However, the total compensatory and punitive damages are capped according to a schedule that provides a total of $50,000 in combined compensatory and punitive damages for employers with 15 to 100 employees, and up to $300,000 for employers with more than 500 employees.

Finally, the prevailing party in a sexual harassment case may recover reasonable attorney’s fees and costs.

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