Unlawful harassment consists of quid pro quo and hostile work environment harassment. Quid pro quo is a Latin term that lawyers use to make themselves seem smarter than they really are. It means "this for that," and in the context of a sexual harassment claim, it means a manager or other person with power over a subordinate conditions employment benefits or detriments on a sexual favors.
What is an employment benefit or detriment? It can be anything related to hiring and firing, affecting compensation, promoting or demoting, transferring or reassigning, etc. In other words, anything that has an economic impact on an individual can be a benefit or detriment. As an example, if a supervisor says, “I will give you the best schedule if you go on a date with me,” then quid pro quo harassment has occurred. These types of claims abound today, and the facts can be quite subtle.
In fact, ripped from recent headlines, the host of a popular cable television news show was accused of inviting a female broadcast personality to go to dinner, attend Broadway shows, and visit him in his hotel room. When she told him she was not interested in developing a romantic relationship with him, she was replaced as a contributor on his show. This could be quid pro quo harassment. Does this happened at work? Just ask a certain media personality—these are some of the allegations that were made against him.[1]
Hostile work environment is a term that gets thrown around quite a bit by both employers and employees, and it’s likely neither knows what it actually means. In order for an employee to state a claim for hostile environment, there must be some connection to a protected class. In addition, an employee must show she was subjected to subjectively and objectively offense words or actions that were sufficiently severe and pervasive to alter his conditions of employment. The inappropriate words or actions can take many forms, such as:
· Offensive jokes and innuendo (including racial and sexual jokes).
· Obscene gestures.
· Racial or ethnic slurs.
· Gender-related insults.
· Verbal attacks regarding sexual preference.
· Age related comments.
· Verbal threats.
· Leering and elevator eyes.
· Statements about disabilities.
Here’s a brief summary of the elements of hostile work environment harassment. The conduct must be subjectively offensive to the “victim.” In legalese, the conduct must be unwelcome. But don’t take “unwelcome” too literally—even conduct that is passively accepted, tolerated or even participated in may be considered “unwelcome” by a victim. For example, if Jack asks his co-worker Jill on a date and she says, “No,” and he never asks her again, then no harassment has occurred. But if Jack persists asking Jill out, it eventually will reach the point of “unwelcome-ness” even if she goes on one date or simply strings Jack along without actually telling him, “No!”
Next, the conduct must be offensive to the fictitious “reasonable person.” This introduces an element objectivity to the analysis. In other words, most reasonable people (i.e., 9 out of 12 the jury in California state court) would agree the conduct is offensive. For example, with very few exceptions, most reasonable people would agree racial slurs are objectively offensive and have no place at work.
To prevail on a hostile environment harassment claim, the victim must also demonstrate the conduct is severe or pervasive. There is a sliding scale depending on severity or pervasiveness. For example, a one-time occurrence of sexual assault would be so severe, it would create a hostile work environment for the victim. On the other hand, a steady drip of moderately offensive gimpy jokes and comments by many co-workers may have the cumulative effect being so pervasive as to create a hostile work environment for a disabled individual.
The ultimate effect of harassing conduct (e.g., unwelcome, offensive to the reasonable person, and severe or pervasive) is that it changes the terms and conditions of employment. In other words, the work environment becomes so uncomfortable for the victim, he can no longer work effectively. This is distinguished from ordinary work-related stress or anxiety. It is completely outside of the scope of the normal work environment, and makes it unreasonably difficult for the victim to perform his job.
What about the “harasser’s” intent? For example, could hugging, touching, rubbing shoulders, or face talking (i.e., invading another’s personal space) be considered conduct of a “sexual nature” even though it is not intended that way? It is irrelevant that the shoulder rubber does not intend to offend anyone. You don’t have to intend to offend someone for the conduct to be considered harassment. Rubbing shoulders, etc., can all be considered sexual harassment and create a hostile working environment if unwelcome and ongoing.
Harassment is typically about power—the harasser’s power over the victim. However, you don’t have merely take it. You have power, too! Of course, you have the power to recover damages for the harassment you have personally endured. But you have the power to make real change. You have the power to stop harassment, to change your employer’s anti-harassment policies and practices, and to make sure no one will ever have to suffer like you did. Sure it takes courage, but you don’t have to go it alone.
If you want to learn more, check out www.JohnLattinLaw.com.
[1] Although he denied the claims.
