Quid Pro Quo and the Necessity of a Tangible Employment Action
New York City Employment Attorneys fighting for employee rights in Quid Pro Quo Cases
The New York City Sexual Harassment Attorneys DEREK T. SMITH LAW GROUP, PLLC handles a multitude of cases that involve “Quid Pro Quo” in New York City, New Jersey and Philadelphia. For further information, please feel free to call us at 212-587-0760 or toll-free at 1-877-4NYLAWS or contact the firm by using the form at the top right of this page.
What is Quid Pro Quo in Sexual Harassment? Our Sexual Harassment Attorneys Explain.
Quid Pro Quo a Latin term meaning “this for that”. Where a person asserts a quid pro quo action based on an allegation that she was punished because she rejected the sexual advances of a supervisor, she must show: (1) that she was subjected to a sexual demand or sexual advance; (2) that she was subjected to a tangible employment action; and (3) that there is a link between her acceptance or rejection of the sexual demand/advance, and the tangible employment action.
The method of proving that an employee was subjected to a sexual advance or a sexual demand is explained in another section on this page. Furthermore, as explained in more detail elsewhere, a tangible employment action is one that impacts the “terms or conditions” of the person’s employment. Such actions may range from termination or demotion to the denial of restroom breaks. But what happens where an employee gives in to the sexual advances of a supervisor? In answering this question, courts are split as to whether “acceptance” of a sexual advance can be deemed a “tangible employment action.”
The Second Circuit (the Court of Appeals for Vermont, Connecticut and New York) has held that acceptance of a sexual advance of a supervisor may be considered a tangible employment action. Under this theory, the use of the acceptance of the sexual advance as to the basis for making an employment decision (such as letting an employee keep her job) will be deemed a tangible employment action sufficient to satisfy the second requirement of the quid pro quo test. The Ninth Circuit (the Court of Appeals for Hawaii, California, Washington, and Oregon) applies a similar rule.
Outside of the Second and Ninth Circuits, trial courts across the country have held that acceptance of sexual demands cannot be a tangible employment action. For example, a district judge in the Southern District of Texas recently held that where an employee accepted a sexual advance without being subject to a tangible employment action, she could not state a claim for quid pro quo harassment. Rather, the court held that such a claim must be considered as one for hostile work environment. This distinction is an important one because a defendant employer may assert the Faragher/Ellerth affirmative defense in hostile work environment actions, but not in claims arising from a tangible employment action.
Although no Court of Appeals has explicitly accepted the requirement set forth by the judge in the Southern District of Texas, trial courts in the Western District of Louisiana and the Northern District of Illinois have reached similar conclusions. Furthermore, in a concurring non-binding opinion, one judge on the District of Columbia Court of Appeals expressed a similar belief.
Based on the foregoing, it is clear that quid pro quo actions brought in the Second and Ninth Circuits may survive even if the employee was not subjected to a tangible employment action. However, in other jurisdictions (particularly, Louisiana, Illinois, and the District of Columbia) a plaintiff who did not suffer a tangible employment action would be wise to assert a related claim for hostile work environment.
Contacting A New York City Sexual Harassment Lawyer
The gender discrimination attorneys at the DEREK T. SMITH LAW GROUP, PLLC handles a multitude of cases that involve sexual harassment in New York City. For further information, please feel free to call us at 212-587-0760 or toll-free at 1-877-4NYLAWS or contact the firm by using the form at the top right of this page. New Your Super Lawyers and NY Top sexual harassment Attorneys. Our sexual harassment lawyers serve clients in Manhattan, Brooklyn, Queens, the Bronx, and Staten Island and throughout the state of New York. We also represent employees sexual harassment cases in New Jersey, Philadelphia & Washington D.C.
For more information on New York, New Jersey and Philadelphia labor & employment laws, and other types of Sexual Harassment and Employment Discrimination visit our New York City Employment Law Blog