Sexual Harassment Claim: Quid Pro Quo or Hostile Environment?

In 1980 the Commission issued guidelines declaring sexual harassment a violation of Section 703 of Title VII, establishing criteria for determining when unwelcome conduct of a sexual nature constitutes sexual harassment, defining the circumstances under which an employer may be held liable, and suggesting affirmative steps an employer should take to prevent sexual harassment. See Section 1604.11 of the Guidelines on Discrimination Because of Sex, 29 C.F.R. § 1604.11 (“Guidelines”). The Commission has applied the Guidelines in its enforcement litigation, and many lower courts have relied on the Guidelines.

Title VII does not proscribe all conduct of a sexual nature in the workplace. Thus it is crucial to clearly define sexual harassment: only unwelcome sexual conduct that is a term or condition of employment constitutes a violation. 29 C.F.R. § 1604.11(a). The EEOC’s Guidelines define two types of sexual harassment: “quid pro quo” and “hostile environment.”

The Guidelines provide that “unwelcome” sexual conduct constitutes sexual harassment when “submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,” 29 C.F.R § 1604.11 (a) (1).

“Quid Pro Quo”
harassment” occurs when “submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual,” 29 C.F.R § 1604.11(a)(2)

“Hostile Environment”

The Supreme Court  held that for harassment to violates Title VII (hostile environment), it must be “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” Id. (quoting Henson, 682 F.2d at 904).

Although “quid pro quo” and “hostile environment” harassment are theoretically distinct claims, the line between the two is not always clear and the two forms of harassment often occur together. For example, an employee’s tangible job conditions are affected when a sexually hostile work environment results in her constructive discharge.  Similarly, a supervisor who makes sexual advances toward a subordinate employee may communicate an implicit threat to adversely affect her job status if she does not comply.
“Hostile environment” harassment may acquire characteristics of “quid pro quo” harassment if the offending supervisor abuses his authority over employment decisions to force the victim to endure or participate in the sexual conduct. Sexual harassment may culminate in a retaliatory discharge if a victim tells the harasser or her employer she will no longer submit to the harassment, and is then fired in retaliation for this protest. Under these circumstances it would be appropriate to conclude that both harassment and retaliation in violation of section 704(a) of Title VII have occurred.