New York Employment Attorney Blog
When someone with power over you in the workplace asks you to provide sexual favors in exchange for a workplace benefit (or threatens to punish you if you deny them sex,) that’s something the law calls “quid pro quo” sexual harassment. In New York City, workers are protected from this sort of dehumanizing misconduct by three laws: federal law’s Title VII, the New York State Human Rights Law, and the New York City Human Rights Law. If you believe that you suffered this kind of harm on the job, you should reach out to an experienced New York sexual harassment lawyer to discuss your situation and map out your options.
In 2019, Cornell University released a report detailing the results of research into the pervasiveness of quid pro quo sexual harassment in New York. The research showed that nearly 11 percent — or roughly 1.7 million workers — had experienced quid pro quo harassment at some point in their careers. That included more than 12 percent of women and 9.5 percent of men. This study shows that quid pro quo harassment is an insidious, pervasive, and stubborn problem. (The old adage about how power corrupts seems appropriate here.)
Winning a quid pro quo harassment case requires understanding exactly what the legal standards are under each of Title VII, the NYSHRL, and the NYCHRL… and ensuring that what you’ve pled in your court papers meets what’s required by the law upon which you founded your claim. As some recent sexual harassment cases show, a quid pro quo harassment pleading is definitely a place where details matter.
The most recent decision, issued earlier this month, was an unsuccessful one for a New York worker because of a lack of critical details.
Title VII Success Requires Plausibility, Not Just Possibility
H.R. worked upstate as a marketing communications manager for a subsidiary of an industrial technology conglomerate. In the summer of 2019, A.M. became president of the subsidiary company. Following an introductory meeting, the new president invited the manager to lunch to discuss work matters. On the way, however, the president stopped at an employer-owned apartment maintained for the president’s use.
The president “insisted” that the manager come inside with him because he “wanted her opinion” about the apartment. When the president asked her to step into the bedroom, though, the manager left the apartment. At lunch, the president allegedly made additional inappropriate advances, which included asking the manager if she had a spouse or a boyfriend.
The manager later separated from the company and ultimately sued for quid pro quo sexual harassment in federal court.
When making a quid pro quo sexual harassment claim, it is important to ensure that your allegations related to the inappropriate advance(s) are strong. Your proof needs to be sufficiently persuasive such that it is “plausible, as opposed to merely possible” that the alleged wrongdoer engaged in sexual misconduct as opposed to something more innocent.
The manager didn’t have that, according to the judge. The manager “evidently wishes the Court to infer that the bedroom was furnished with a bed,” but never actually placed any facts in her complaint from which the court could reasonably infer that the bedroom contained a bed. Furthermore, the complaint did not indicate whether the president invited the manager into other rooms, or whether he specifically invited her only into the bedroom.
Additionally absent were facts that, if alleged and proven, would have greatly altered the strength of the manager’s case. The complaint didn’t say that the president mentioned sex, commented on the manager’s body, clothing, or appearance, or “said anything of an overtly sexual nature.”
Also, the complaint lacked allegations of physical acts that could have established a strong case of sexual harassment. The manager never alleged that the president touched her, tried to touch her, or did anything to restrain her from leaving the apartment when she decided to go outside.
Without those crucial allegations, the manager’s case was just her “subjective characterization” and the events were “just as consistent with innocent behavior,” meaning that her pleading didn’t meet the plausible-not-just-possible standard.
By contrast, a Mississippi woman’s recent quid pro quo sexual harassment complaint under Title VII fared better because it had that “something more” that the New York woman’s case lacked. Specifically, the Mississippi woman alleged that her supervisor sent her sexual text messages, including one that attached a picture of “him holding his genitalia through his clothes” and another where he discussed possible raises and/or promotions but warned “that a better position on the job ‘comes with a price’”… namely, her performance of sex acts.
This evidence, if accepted by the court, stands in marked contrast to the upstate woman’s case. Here, the characterization of the supervisor’s conduct as harassing is not just possible but highly plausible as there is no “innocent” alternate explanation of equal or greater likelihood.
A successful quid pro quo case under Title VII also needs an “adverse employment action.” This can take the form of a denial of employment, a termination, a demotion, a suspension, a reduction of pay, a reduction of hours, a reduction in benefits, or other tangible harm. In the Mississippi woman’s case, she alleged that, after she refused to engage in sex acts with her supervisor, she not only didn’t receive a raise or a promotion, she lost hours and lost benefits.
The Added Protections Provided by the NYCHRL
Here in New York City, workers have the added benefit of the NYCHRL. That law says that claims like quid pro quo sexual harassment must be given a “liberal construction” independent of the standards enacted by state or federal law. Specifically, that analysis requires ruling in favor of a worker alleging quid pro quo sexual harassment if she proves “by a preponderance of the evidence that she has been treated less well than other employees because of her gender.”
As an example, we can look at the sexual harassment case of a New York City artist who sought to obtain employment with an arm of Google. According to the complaint, the creative lead employee with whom the artist interacted — and whom the artist believed was responsible for hiring — frequently attempted to engage in conversations of a personal nature over both email and text messages. The artist allegedly tried to “keep it professional.”
After that, the lead told the artist that “he blurred their relationship and suggested that they stick to being professional.” What the lead allegedly did, however, was to “dangle” major projects but then refuse to assign them to the artist because “he could not work with her because he was very attracted to her.” Ultimately, the artist was not hired, either as an internal employee or as an independent contractor.
That was ample proof to support a viable quid pro quo claim. The artist had sought a position with the employer. The man in charge of hiring allegedly told her that he was rejecting her because he was romantically attracted to her. That, by itself, was enough to “plausibly support that she was treated less well because of her gender” and suffered real harm as a result of that treatment.
Your professional success should be the result of your meritorious work product, not sex. If you’ve encountered this type of quid pro quo scenario, know that the skilled New York sexual harassment attorneys at Phillips & Associates are here to help. Our team offers extensive experience successfully representing workers caught in quid pro quo situations. Contact us online or at (833) 529-3476 to set up a free and confidential consultation today.