Sexual Harassment, Quid Pro Quo

Statutory Provisions and Enforcement

Under Title VII of the Civil Rights Act of 1964, private and public institutions with 15 or more employees may be liable for acts of supervisors and employees who sexually harass others. Title VII is enforced by the Equal Employment Opportunity Commission. Title IX of the Education Amendments of 1972, an educational statute, prohibits discrimination on the basis of sex in educational institutions that receive federal financial aid. In addition to being able to file private complaints, aggrieved parties can seek help from the Office of Civil Rights in the U.S. Department of Education in enforcing Title IX. Title VII addresses employer-to-employee sexual harassment, while Title IX covers employee-to-employee, employee-to-student, and student-to-student quid pro quo sexual harassment.

Background

The law of quid pro quo sexual harassment emerged in U.S. Supreme Court cases dealing with the workplace starting in the 1980s; none of these cases directly involved higher education. Although quid pro quo claims are less numerous than those for hostile work environment sexual harassment, a body of case law is evolving, the vast majority of which is resolved in favor of colleges and universities. Moreover, although the two forms of harassment involve slightly different issues, they generally require plaintiffs to establish the same elements in seeking to hold individuals and/or institutions liable.

In order for plaintiffs to prevail on claims of quid pro quo sexual harassment, they must be able to establish five points. First, insofar as plaintiffs must belong to a protected category and most, although certainly not all, such claims have been filed by women, this element is satisfied on its face when women file claims (because they are part of [Page 408]the class that the law is designed to protect). Second, plaintiffs must have been subjected to unwelcomed sexual harassment. Third, the offending behavior must have been considered harassment because it was disproportionately offensive or demeaning to one sex, such as, for example, when humor is not directed at any one individual or group of persons but at individuals of one sex. Fourth, the harassment must affect a term, condition, or privilege of employment to such a degree that it alters working conditions to the point that it seriously affects the psychological well-being of plaintiffs. Fifth, employers, through their officials, must have known or should have known of the harassment but have failed to take prompt remedial action.

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