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Appellate Court Outlines Differences Again Between Quid Pro Quo and Hostile Work Environment Harassment

Posted in Discrimination & Harassment, Litigation

During some of the seminars that I teach on sexual harassment prevention, one of the topics that available at ct.gov websiteis covered is describing the difference between quid pro quo harassment and hostile work environment harassment.

On Wednesday, the Connecticut Appellate Court taught that same lesson in reviewing a case in which an employee (who lost a trial) claimed that certain jury instructions on quid pro quo harassment should have been given.

The case itself, Griffin v. Yankee Silversmith Ltd (officially released on July 8, 2008), won’t set the employment field ablaze like some other decisions this year.   The facts resolve around an employee who claimed that her employment ended in retaliation for complaining about sexual harassment.  On appeal, the employee claimed that the jury should have been told about quid pro quo harassment she endured and instructed on that subject, not simply on a "hostile work environment" theory.

The Appellate Court disagreed noting that the employee didn’t raise that issue in the Complaint and the evidence didn’t support such a claim of quid pro quo harassment.

In doing so, the court noted that quid pro quo harassment is just different from "hostile work environment" harassment:

Quid pro quo sexual harassment, as its name suggests, conditions employment on the return of sexual favors; hostile environment sexual harassment is conduct that ‘‘has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment."

The court added that these distinctions are also found in Connecticut’s anti-harassment statute Conn. Gen. Stat. 46a-60(a)(8). 

So what’s the takeaway from this case? I’ve been trying to think of something groundbreaking, but the fact is that there isn’t much to take away from a case like this. 

For employees, it will be making sure a Complaint is plead correctly so that evidence can be submitted at trial to support a theory. For employers, it just emphasizes the fact that state courts are seeing more of these cases. 

Ultimately, perhaps the best "lesson" from this case is to understand the difference in the types of harassment.  For employers, this can also lead to a greater understanding about how to prevent it from occurring in the workplace. 

  • kent

    Since 1998, “QPQ” has become less important as an analytical tool (although it certainly is a clear type of behavior to advise managers against engaging in) with the US Supreme Court’s emphasis on “tangible employment actions” and its affect on the availability of the Title VII affirmative defense.
    For example, a QPQ where the supervisor offers a promotion is a “tangible employment action” when the promotion is denied (so the affirmative defense is not available), but if the QPQ only offered a better parking space in the employee parking lot, the QPQ does not concern a “tangible employment action” (and the affirmative defense is available).
    In fact, in preparing some supervisor anti-harassment training material for the EEOC to review, I received comments from an EEOC attorney to remove the QPQ discussion and substitute discussion of “tangible employment actions.” From a reaching-the-audience standpoint, however, I question whether it is better to teach supervisors to avoid “tangible employment actions” rather than simply prohibiting QPQ conduct.
    In any event, to see some REAL CONFUSION on the topic, check out the 9th Circuit’s August 2007 decision Craig v. M&O Agencies no. 05-16427. According to this opinion, QPQ is identical to “tangible employment action.”
    It wrote:
    “The [Supreme] Court outlined the principles governing employer liability for sexual harassment in Burlington … and Faragher …. The Court divided cases in which a supervisor harassed a subordinate into two categories. The first category … termed “tangible employment action” or “quid-pro-quo” harassment, the employer may be held vicariously liable under traditional agency law. … In the second category, which are known as “hostile environment” claims, the Court tempered the agency principles by allowing the employer to assert an affirmative defense if….”
    Final note: an unaccomplished QPQ is a HWE. For example, the boss keeps saying, “give me a kiss, and get a raise,” but no one kisses the boss, the incomplete QPQ may ultimately create a hostile environment.

  • http://www.rtlitigation.com/2008/07/articles/employment-law/a-better-understanding-of-hostile-environment-helps-to-steer-clear-of-its-liabilities/index.html Rogers & Tartaro Business Litigation Blog

    A Better Understanding of Hostile Environment Helps to Steer Clear of Its Liabilities

    Conduct that amounts to quid pro quo sexual harassment and its potentially devastating liabilities are readily understood by most of our clients as conduct that is generally not inadvertent. They understand it as a forbidden bargain: employment for a s…