DEFENDING FLORIDA EMPLOYERS: DEFEATING CLAIMS OF SEXUAL HARASSMENT ALLEGING “QUID PRO QUO”

In many cases, employers or managers make statements that do not qualify as sexual harassment as a matter of law, even though the statements may be viewed as inappropriate. To assess the best defense against an employee’s claim of sexual harassment, it is important to understand the types of sexual harassment under the law and whether the employee’s allegations qualify as a valid claim under Federal or Florida law. One type of sexual harassment under Federal and Florida law is called “quid pro quo” sexual harassment. Florida law follows Federal law concerning whether the alleged actions constitute “sexual harassment.”

Employees can sue their current or former employers based on a quid pro quo theory of sexual harassment under Title VII of the Civil Rights Act of 1964. “Quid pro quo sexual harassment occurs when an employer alters an employee’s job conditions as a result of the employee’s refusal to submit to sexual demands.” Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311 (11th Cir. 1989). This type of claim differs from sexual harassment claims based on a hostile work environment where an employer’s conduct “has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive environment.” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

“The gravamen of a quid pro quo sexual harassment claim is that the employer conditions an employment benefit or job status upon the employee’s submission to conduct of a sexual nature.” Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311 (11th Cir. 1989). To establish a prima facie case of quid pro quo sexual harassment against their current or former employer, an employee must show “(1) that [she] belongs to a protected group, (2) that [she] was subjected to unwelcome sexual harassment, (3) that the harassment complained of was based on sex, and (4) that [her] reaction to the harassment complained of affected tangible aspects of [her] compensation, or terms, conditions, or privileges of employment.” Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th Cir. 1987). An employer is strictly liable for quid pro quo sexual harassment by a supervisor based on the agency doctrine of respondent superior.

“Not all conduct that may be viewed as sexual harassment creates a basis for recovery under the quid pro quo notion.” Splunge v. Shoney’s, Inc., 874 F. Supp. 1258 (M.D. Ala. 1994). Rather, “[t]he acceptance or rejection of the harassment by an employee must be an express or implied condition to the receipt of a job benefit or the cause of a tangible job detriment in order to create liability under this theory of sexual harassment.” Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Indeed, there must be some evidence, whether implicit or explicit, of a threatened or promised impact on the employee’s employment. An employee can typically prove a case of explicit quid pro quo sexual harassment through express statements by the supervisor that the employee will suffer some detriment if they do not comply with the supervisor’s sexual requests or demands.

By contrast, claims of implicit quid pro quo sexual harassment depend on the strength of the “verbal nexus” between the supervisor’s discussion of job benefits and request for sexual favors. To determine whether implicit quid pro quo sexual harassment has occurred, a nexus between the alleged harassment and the affected term of employment must exist. Hazel v. Sch. Bd. of Dade County, Fla., 7 F. Supp. 2d 1349 (S.D. Fla. 1998). “The tighter the nexus between a discussion about job benefits and a request for sexual favors, the more likely that there has been an ‘implicit’ conditioning by the harasser.” Hazel v. Sch. Bd. of Dade County, Fla., 7 F. Supp. 2d 1349 (S.D. Fla. 1998). “At least three factors are relevant in deciding whether a claim for implicit quid pro quo harassment exists: (1) the frequency of the supervisor’s sexual advances; (2) the length of time over which those advances occur; and (3) the tightness of the verbal/temporal nexus between the supervisor’s sexual advances and the supervisor’s discussion of job benefits or detriments.” Fowler v. Sunrise Carpet Industries, Inc., 911 F. Supp. 1560 (N.D. Ga. 1996).

In the typical case of quid pro quo sexual harassment, courts therefore consider if “the supervisor relies upon his apparent or actual authority to extort sexual consideration from an employee.” Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Courts will also consider the “frequency of the supervisor’s advances, the length of time over which the advances occurred, and the strength of the nexus between the advances and the discussion of job benefits or detriments have all been considered relevant by other courts. Hazel v. Sch. Bd. of Dade County, Fla., 7 F. Supp. 2d 1349 (S.D. Fla. 1998). Quid pro quo sexual harassment thus occurs when the employer changes its employee’s conditions of employment due to the employee’s refusal to submit to sexual demands. Virgo v. Rivera Beach Assocs., 30 F.3d 1350, 1362 (11th Cir. 1994).

Peter Mavrick is a Fort Lauderdale employment lawyer, and represents clients in Miami, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.