Quid Pro Quo Revisited
Quid pro quo is a form of sexual harassment where sexual favors are extorted from an employee by a supervisor in exchange for some type of job action: hiring, promotion, avoidance of discipline, specific job assignment. Quid pro quo is the original basis for all sexual harassment law, and when it is proven to exist, an employer has absolute liability, whether they approved of or even knew about the behavior.
Quid pro quo appears simple in its definition. If an employee is coerced for a sexual favor by a supervisor and that favor is not given, and the supervisor imposes adverse job action as a result of the employee's refusal to go along, quid pro quo harassment clearly exists and the employer is liable. But what if the employee gives into sexual pressure out of fear, and the negative outcome exists only as a threat and not an actual occurrence? Is this still quid pro quo harassment?
The Supreme Court revamped the standards for sexual harassment liability in 1998 (see Archives August-September 1999). In the event of quid pro quo harassment, where a tangible employment action is taken, an employer is strictly liable. If no tangible employment action results from supervisory harassment, the court offered employers a two-prong defense: they must show that they took reasonable care to prevent and correct harassment, and they must show that the employee unreasonably failed to take advantage of corrective opportunities made available by the employer.
A recent case in the Second Circuit Court of Appeals, Jin v. Metropolitan Life Insurance Company, addressed grey areas in determining if quid pro harassment exists. Min Jin, a successful insurance agent, initially submitted to her supervisor's sexual advances because she believed his threat that she would be fired if she refused. She later quit her job as a result of the untenable working conditions she faced. Her case in lower court was found in favor of her employer, who was seen to have met the requirements of the two-prong defense. That court also failed to see that a tangible employment action had been taken, since Ms. Jin had quit rather than being fired.
The Second Circuit reversed this decision, saying that Ms. Jin did face a tangible employment action as a result of the harassment she experienced; i.e., the requirement of performing coerced sexual acts as part of her job. The Second Circuit saw this as a "condition of employment," part of the definition of quid pro quo harassment. The fact that she submitted and kept her job rather than refusing and being fired did not affect the court's ruling.
These so-called "submission cases" are raising issues with how harassment law is applied, particularly in the event of higher liability quid pro quo behavior. This Second Circuit ruling might open the door for further developments in this area.
Source: "Should Supervisors be Automatically Liable when Supervisors Coerce Sexual Favors from Subordinates?" by Joanna Grossman on Findlaw.com.
Jin v. Metropolitan Life, 2nd Circuit Court of Appeals, 01-7013
September/October 2002 Issue Number 39
Is a monthly electronic newsletter which links current events and issues to the daily challenges faced by fire and emergency services managers. Current topics in the areas of leadership development, workplace diversity, change management, and conflict resolution will be discussed. 
