If someone alleges that she was terminated because the new department manager didn't want a woman in his department, then she has alleged sex-based termination. No question. However, if she alleges that she was terminated because she refused to sleep with the new department manager, that's supposedly somehow different, and the situation is labeled quid pro quo harassment. This dichotomy is poppycock. A sex-based termination is a sex-based termination. Labeling the latter as a form of "harassment," whatever that means, rather than as a straightforward termination claim, is not only unnecessary but also confusing. It has resulted in courts mistakenly treating "quid pro sexual harassment" differently from other forms of sex-based discrimination that result in the same kind of challenged action.
In Davenport v. Edward D. Jones & Co., No. 17-30388 (5th Cir. May 16, 2018), Tyanne Davenport alleged that she was denied a bonus because she refused a supervisor's request that she date a male potential client. This claim clearly alleged that Davenport was denied a bonus because of her sex since the request presumably would not have been made of a male subordinate. Unfortunately, however, the district court rejected Davenport's claim, reasoning that the Fifth Circuit does not recognize a quid pro quo claim based on the sexual advances of a third party, only a claim based on a supervisor's advances. Yet the district court presumably would not have had trouble concluding that an employer violates Title VII by refusing to assign a woman to provide services to a client based on the client's known preference that it works only with men.
On appeal, the Fifth Circuit rejected the district court's conclusion that a quid pro quo claim is limited to the sexual advances of a third party, reasoning that the supervisor made the requests and therefore he had engaged in the sexual harassment. (The Fifth Circuit ultimately concluded that Davenport could not show that she was denied the bonus for rejecting the requests that she date the potential client.) Unfortunately, although the Fifth Circuit rightly disagreed with the district court, its approach nevertheless perpetuates the confusing distinction between quid pro quo harassment and other forms of disparate treatment. The court could have instead simply explained that an employer may not acquiesce in a third party's discriminatory requests, regardless of whether the request is tied to sexual advances.
Even more troubling is the First Circuit's decision in Velázquez-Pérez v. Developers Diversified Realty Corp., which the court construed as involving coworker "quid pro quo" harassment. In that case, Atonio Velázquez-Pérez alleged that a human resources manager used her influence to get him fired because he rejected her sexual advances. If the court had properly viewed the claim as one of straightforward termination, then the only question would have been whether the manager's use of official authority caused the plaintiff to be fired. However, because the court instead viewed the claim as one involving quid pro quo sexual harassment, the court applied principles from the hostile work environment context, assuming that the two forms of harassment should be treated the same. Hostile work environment principles generally do not apply when an agent of the employer acts in his official capacity. Not recognizing that, the court concluded that since the manager was not the plaintiff's supervisor, the employer would only be liable if it negligently allowed the manager's actions to lead to the plaintiff's termination. Thus, merely because the plaintiff's termination claim was tied to the rejection of sexual advances, the court applied a lower standard of liability.
So do courts ever get it right?
Thankfully, they do, and a splendid example is the Second Circuit's decision in Gregory v. Daly, penned by Judge Guido Calabresi:
[A] "quid pro quo" allegation merely makes a factual claim about the particular mechanism by which a plaintiff's sex became the basis for an adverse alteration of the terms or conditions of her employment. Of course, if proven, such behavior manifestly violates Title VII. But it does so because a sexual quid pro quo constitutes a specific and egregious example of an employer taking adverse employment actions that penalize an employee's refusal to comply with a discriminatory condition of employment. And such actions are themselves discriminatory.
The law does not create separate causes of action for sex discrimination depending on the reason the employer denies a woman a job or a job benefit. It does not, for instance, delineate distinct claims for employers who dislike women, doubt their abilities, demand that they conform to sex stereotypes, or want their policies to reflect actuarial differences between the sexes. What matters, instead, is simply whether an employment action was based on plaintiff's sex. Similarly, there is no reason to create a separate doctrinal category for employers who make women's workplace success contingent on submission to a supervisor's sexual demands. For such a sexual quid pro is just another way in which an employer, in violation of Title VII, makes an employee's sex relevant to an employment decision.So sex discrimination violates the law, whether it involves sexual comments that create a hostile work environment, an adverse based on the rejection of sexual demands, or a policy against hiring women into managerial positions. The nebulous concept of "quid pro quo" harassment has created confusion and inconsistency in the application of the law. What's more, treating quid pro quo sexual harassment claims as different from other adverse actions based on sex can make it more difficult for a plaintiff to prevail. This effectively marginalizes and relegates sexual harassment to second class status. Let's hope that, like the Second Circuit in Gregory v. Daly, other courts and practitioners begin to see the light and recognize that the term "quid pro quo" harassment should be abandoned and that such claims should be treated like any other claims of sex discrimination.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.