Quid pro quo and hostile work environment: two recognized forms of sexual harassment

Sexual harassment can take a number of forms, but most cases boil down to two basic forms. In this article, we'll take a brief look at these and the importance of working with experienced legal counsel in pursuing these claims.

Sexual harassment can take a variety of forms. For one thing, it can involve different types of individuals. It may occur between coworkers, with supervisors being made aware of the situation, as well as between a supervisor and an employee. It may be directed not only at another individual within a company, but also at an individual outside the company, such as an applicant or clients/customers.

The specific behavior involved may also vary. Sexual harassment is generally understood to involve unwelcome communications or actions of a sexual nature, but it can also involve offensive communications directed at a person's sex. Communications can be verbal, written, visual or physical. Sexual harassment need not involve the opposite sex, either; it can also occur with members of the same sex.

Sexual harassment can also, of course, have varying consequences for the victim. In some cases, the victim may ultimately be terminated from his or her position. In other cases, he or she may be demoted, transferred or overlooked for advancement. Still other cases may involve a victim choosing to quit to get away from a toxic work environment. Despite the variety of actions and circumstances encompassed by the concept of sexual harassment, there are two types of harassment that have been clearly recognized by the courts.

Types of sexual harassment

One common form of sexual harassment is known as quid pro quo, which refers to harassment between a supervisor/manager and a worker/employee. Quid pro quo sexual harassment occurs when the supervisor demands submission to sexual advances or asks for sexual favors as a condition of employment decisions. The demands or requirements may be explicit or implicit, and may or may not arise out of a previous romantic relationship between the supervisor and the employee. The fact that there was a prior relationship does not make such demands or requests legal.

Another common form of sexual harassment is hostile work environment, which occurs when unwelcome communications occur with enough frequency and pervasiveness, or seriousness, that the victim's work performance suffers as a result. Hostile work environment is an important basis for sexual harassment claims because employers will often attempt to justify retaliatory behavior by passing it off as performance-based. Looking at a harassed employee's performance record would, in many of these cases, justify adverse employment action if the poor performance was not properly understood to be the result of sexual harassment.

Proving sexual harassment claims

Proving claims of sexual harassment-whether quid pro quo or hostile work environment-is not always easy. For one thing, the interpersonal dynamics surrounding sexual harassment can be complicated, making harassing behavior seem consensual when it really isn't. Also, sexual harassment may very well occur in private, so that there are no witnesses to corroborate claims. Because of this, many cases come down to the credibility of the parties.

In building a strong sexual harassment case, victims need to gather the best possible evidence in support of their claim. Witnesses to harassing behavior can certainly be helpful in proving harassment claims, as can witnesses of the victim immediately after the harassment. Prior complaints against the employer, and records of the employer's response to these claims, can prove potentially useful as well.

In any sexual harassment claim, the credibility of the employer's justification for adverse employment action must be carefully scrutinized to determine whether the justification is pretextual. This can be difficult, particularly when quid pro quo harassment is implied in a supervisor's communications or in hostile work environment cases when an employer provides a convincing, if misleading, performance-based justification for adverse employment action.

Work with experienced legal counsel

Sexual harassment in the workplace can be extremely disrupting to the individual targeted by the harassing behavior and can result in significant costs. Pursuing a claim of sexual discrimination can be intimidating, particularly against a large employer with access to sophisticated legal representation. For employees, working with experienced legal counsel is essential to ensure they have the best possible representation, both in reporting complaints to state and federal agencies and in pursuing their own private claim in court.

Keywords: sexual harassment, employment litigation