Employers Cannot Suggest or Ask for Sexual Acts in Exchange for Employment Benefits

sexual-harrassment-at-work

What is Quid Pro Quo Sexual Harassment?

Quid Pro Quo sexual harassment occurs when an employee feels their terms of employment are conditioned upon giving into his or her employer or supervisor’s sexual advances.  Under California (Fair Employment and Housing Act aka FEHA) and federal law (Title VII), an employer cannot impliedly or expressly ask for sexual acts in exchange for employment benefits.

Quid Pro Quo sexual harassment can occur in various forms.  For example, an employer or supervisor conditions an employment benefit such as a job offer, raise or a promotion in exchange for some sort of sexual conduct from the employee.  Quid Pro Quo sexual harassment can also occur in the form of a threat of an adverse employment action such as a reduction in pay, demotion, or termination if the employee fails to give into the employer or supervisor’s sexual propositions.

It is important to note that the mere discussion of sexual acts or behavior that could lead to sexual acts can suggest an offer or threat.  For example, California Appellate Courts have held that “[a] cause of action for Quid Pro Quo harassment involves the behavior most commonly regarded as sexual harassment, including, e.g., sexual propositions, unwarranted graphic discussion of sexual acts, and commentary on the employee’s body and the sexual uses to which it could be put.”  Donald Schriver, Inc. v. Fair Employment & Housing Com. (1986) 220 Cal.App.3d 396, 405.  “To state a cause of action on this theory, is it sufficient to allege that a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor’s unwelcome sexual advances.”  See Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 1005.  In addition, a single instance of Quid Pro Quo sexual harassment can be enough to support a sexual harassment lawsuit.

Who is Liable?

Under California law, businesses (employing at least one employee) and individuals can be liable (legally responsible for money damages) for sexual harassment.  In other words, the employer, supervisor, or coworker can be sued for their roles in the sexual harassment.  Individuals can be liable even if they are merely aiding and abetting the harassment.  An employer can also be liable for an employee’s sexual harassment if the employer knows about the inappropriate conduct, or should have known about the inappropriate conduct.  Employers can also be liable if they fail to take necessary preventive measures prior to or during the sexual harassment.

What Remedies do Victims of Quid Pro Quo Have?

Under California Law victims of Quid Pro Quo sexual harassment may seek one or more of the following remedies: backpay, reinstatement or front pay, injunctive relief, attorney’s fees and costs, compensatory damages for pain and suffering, and punitive damages (where a private employer acts with malice or reckless indifference to an individual’s rights).

Backpay – is the amount of money a plaintiff would have earned in the absence of the discriminatory conduct, measured from the time of the adverse action until the date of trial.  For example, Backpay awards are normally in the form of lost wages or salary, and other benefits lost as a result of the discrimination.

Reinstatement or “Front Pay” – in order to compensate an employee for future damages, a court may award reinstatement or front pay for future wages. Front pay is money awarded for lost compensation between judgment and reinstatement, or in place of reinstatement.

Compensatory Damages (Emotional Distress Damages) – are awarded to a plaintiff to compensate emotional harm, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-monetary losses.

Punitive damages – are damages meant to punish the wrongdoer and are available against nongovernmental (private) employers, supervisors, or coworkers if a plaintiff can show by strong enough evidence that the defendant was guilty of oppression, fraud, or malice when it engaged in the unlawful conduct.  If the employer is a corporate entity, then the plaintiff must also show other factors regarding knowledge, authorization or ratification, or guilt in order to establish liability for punitive damages.  Punitive damages are measured by the egregiousness of the harasser’s conduct.

Attorney fees and costs – under California law, courts have the discretion to award reasonable attorney’s fees to the prevailing party.  Since the award to the prevailing party is discretionary, courts generally do not require a losing plaintiff to pay the employer’s attorney’s fees and costs, unless the plaintiff’s lawsuit is found to be frivolous, unreasonable, or without foundation as commenced or maintained.

Injunctive relief – an injunction is a court order that specifically prohibits an unlawful employment practice.  If employment discrimination or sexual harassment is a recurring problem in a company, an employee can seek an injunction to prevent it from continuing.

Interest – under California law, plaintiffs may seek prejudgment interest.

If you have been the victim of Quid Pro Quo sexual harassment contact Jose Garay, APLC for a Free Consultation at 949-208-3400 or dhyun@garaylaw.com.

 

About the Author

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Daniel Hyun is a California Employment Law Attorney and is counsel in Jose Garay, APLC (www.garaylaw.com).  Mr. Hyun earned his law degree from Washington University in St. Louis School of Law and studied as a visiting scholar at UCLA School of Law, ranked 18 and 17 respectively by US News World & Report in 2017.  During law school, Mr. Hyun received the prestigious CALI Award for receiving the highest grade in his Mediation Theory and Practice course and was a Scholar in Law recipient.  He also made the Dean’s list for being in the top 20 percent of his class, and received high grades in Contracts, Torts, Ethics, Pre-Trial Litigation, Mediation, and Asian American Jurisprudence.  Mr. Hyun was also an Associate Editor for Washington University School of Law’s Law & Policy Journal.  Prior to law school, he graduated from the University of California San Diego and double majored in Political Science: Public Law and Communications, and received multiple Provost’s Honors for having a 4.0 G.P.A.

Mr. Hyun is a member of the California State Bar, Orange County Trial Lawyers Association, and California Employment Lawyers Association.  He has played a critical role in prosecuting and settling multi-million-dollar class action lawsuits.  Mr. Hyun litigates wage and hour, and consumer class actions, and single and multi-plaintiff litigation involving discrimination, harassment, retaliation, and wrongful termination lawsuits in California state and federal courts.  Mr. Hyun provides free consultations and may be contacted at 949-208-3400 or via e-mail at dhyun@garaylaw.com.

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