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Wrongful Termination

California Law About Wrongful Termination of Employment

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Sexual Harassment- Quid Pro Quo

Sexual Harassment- Quid Pro Quo

In California, the law surrounding sexual harassment and quid pro quo sexual harassment in the workplace is comprehensive and strictly enforced. These forms of harassment have significant legal consequences, especially when they intersect with wrongful termination.

Sexual Harassment in California

  1. Definition: Sexual harassment in the workplace includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.
  2. Legal Framework: Governed primarily by the California Fair Employment and Housing Act (FEHA), it applies to employers with five or more employees and covers all types of workers, including part-time and independent contractors.

Quid Pro Quo Sexual Harassment

  1. Definition: Quid pro quo (literally “this for that”) sexual harassment occurs when submission to sexual conduct is explicitly or implicitly made a condition for employment decisions (e.g., hiring, promotion, retention).
  2. Direct Impact on Employment: This type of harassment is characterized by a direct link between accepting or rejecting sexual advances and employment decisions.

Legal Consequences

  1. For Employers: Employers can face severe penalties, including compensatory damages (emotional distress, medical expenses), punitive damages, and attorney fees. There’s also reputational damage and potential impacts on business operations.
  2. For Employees: Victims of sexual or quid pro quo harassment can suffer significant emotional and psychological harm, career setbacks, and financial losses.

Problems and Challenges

  1. Proof and Perception: Establishing concrete evidence of sexual harassment, especially in quid pro quo cases, can be challenging. Perceptions of what constitutes harassment can vary.
  2. Power Dynamics: The power imbalance in quid pro quo situations can deter victims from coming forward due to fear of retaliation or disbelief.
  3. Retaliation and Wrongful Termination: Victims may face retaliation, including wrongful termination, for rejecting advances or reporting harassment.
  4. Employer Liability and Knowledge: Determining whether an employer knew or should have known about the harassment and failed to take appropriate action can be complex.

Examples

  1. Quid Pro Quo Example: An employee is promised a promotion in return for going on a date with their manager. When the employee refuses, they are demoted. This is a clear case of quid pro quo sexual harassment.
  2. Sexual Harassment Leading to Wrongful Termination: An employee repeatedly faces sexual jokes and comments from coworkers. After complaining to HR, they are terminated under the guise of performance issues. This could constitute both sexual harassment and wrongful termination.

Conclusion

In California, sexual harassment and quid pro quo harassment in the workplace are taken seriously, with strict laws to protect employees and hold employers accountable. These situations can lead to complex legal battles, requiring victims to provide substantial proof. The consequences for employers can be severe, emphasizing the need for robust harassment policies and training. For employees, understanding their rights and the nuances of these laws is crucial. Given the complexities, legal advice is often essential for both employees and employers navigating these issues.

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Additional Information

Sexual Harassment in California: Sexual harassment is a form of sex discrimination that is prohibited under both federal and California state law. In California, it is primarily governed by the California Fair Employment and Housing Act (FEHA) and Title VII of the federal Civil Rights Act of 1964.

1. Definition of Sexual Harassment:

  • Hostile Work Environment: Sexual harassment can occur when unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature create a hostile or intimidating work environment. This can include offensive jokes, inappropriate comments, or unwanted advances.
  • Quid Pro Quo: Quid pro quo sexual harassment, on the other hand, involves a situation where a supervisor or person in authority conditions employment benefits, such as promotions or job security, on the submission to sexual advances or favors.

2. Legal Consequences:

  • Civil Liability: If an employer is found liable for sexual harassment in California, they can face significant civil penalties, including damages for emotional distress, lost wages, punitive damages, and attorney’s fees.
  • Criminal Liability: In some cases, especially those involving severe sexual misconduct or assault, the harasser may also face criminal charges under California law.
  • Employer Liability: Employers can be held liable for the actions of their employees, including supervisors, under the doctrine of “vicarious liability.” Employers are required to take reasonable steps to prevent and promptly correct any harassment.

3. Reporting and Investigating Sexual Harassment:

  • Employers are required to have clear policies and procedures for reporting and investigating sexual harassment claims.
  • Employees who believe they are being sexually harassed should report the behavior to their supervisor or HR department. If the supervisor is the harasser, they can report it to a higher authority within the organization.
  • Employers are required to conduct a prompt and thorough investigation of the complaint and take appropriate corrective action if harassment is substantiated.

Problems That Could Arise:

Several issues can arise in the context of sexual harassment, wrongful termination, and employment law in California:

1. Retaliation: Employers are prohibited from retaliating against employees who report sexual harassment. If an employee is wrongfully terminated or faces adverse employment actions after reporting harassment, they may have a separate claim for retaliation.

Example: If an employee reports sexual harassment by a supervisor and is subsequently demoted or fired, they may have a valid retaliation claim.

2. Employer Liability: Determining whether an employer took reasonable steps to prevent and address harassment can be complex. Failure to have adequate policies, training, or an effective reporting mechanism can result in employer liability.

Example: If an employer failed to provide anti-harassment training to employees and did not take appropriate action when harassment was reported, they could be held liable for the harassment.

3. Defenses: Employers may raise defenses such as claiming they had no knowledge of the harassment or that they took prompt and effective corrective action. However, the effectiveness of these defenses can vary based on the specific circumstances of each case.

Example:

If an employer can demonstrate that they promptly investigated and addressed a harassment complaint as soon as they became aware of it, they may have a stronger defense.

Conclusion

In conclusion, sexual harassment and quid pro quo sexual harassment are serious violations of employment law in California. Employers must have robust policies in place to prevent, report, and address harassment promptly. Employees who believe they have been subjected to harassment should report it promptly and seek legal advice to protect their rights. Wrongful termination in the context of sexual harassment can lead to significant legal consequences for employers, including civil and potentially criminal liability.

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2520. Quid pro quo Sexual Harassment—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] subjected [him/her/nonbinary pronoun] to sexual harassment. To establish this claim, [name of plaintiff] must prove all of the following:

  1. That [name of plaintiff] [was an employee of [name of defendant]/ applied to [name of defendant] for a job/was a person providing services pursuant to a contract with [name of defendant]];
  2. That [name of alleged harasser] made unwanted sexual advances to [name of plaintiff] or engaged in other unwanted verbal or physical conduct of a sexual nature;
  3. That terms of employment, job benefits, or favorable working conditions were made contingent, by words or conduct, on [name of plaintiff]’s acceptance of [name of alleged harasser]’s sexual advances or conduct;
  4. That at the time of [his/her/nonbinary pronoun] conduct, [name of alleged harasser] was a supervisor or agent for [name of defendant];
  5. That [name of plaintiff] was harmed; and
  6. That [name of alleged harasser]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

New September 2003; Revised December 2015

Directions for Use

Employers may be liable for the conduct of certain agents. (See Gov. Code,

§§ 12925(d), 12926(d), 12940(j)(1); Reno v. Baird (1998) 18 Cal.4th 640, 648 [76

Cal.Rptr.2d 499, 957 P.2d 1333] [California Supreme Court declined to express opinion whether “agent” language in the FEHA merely incorporates respondeat superior principles or has some other meaning]).

Sources and Authority

  • Harassment Prohibited Under Fair Employment and Housing Act. Government Code section 12940(j)(1).
  • “Employer” Defined: Harassment. Government Code section 12940(j)(4)(A).
  • “Person Providing Services Under Contract: Harassment. Government Code section 12940(j)(5).
  • Sexual Harassment. Cal. Code Regs., tit. 2, § 11034(f)(1).
  • “Courts have generally recognized two distinct categories of sexual harassment

claims: quid pro quo and hostile work environment. Quid pro quo harassment occurs when submission to sexual conduct is made a condition of concrete employment benefits.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 607 [262 Cal.Rptr. 842], internal citation omitted.)

  • “A cause of action for quid pro quo harassment involves the behavior most commonly regarded as sexual harassment, including, e.g., sexual propositions, unwarranted graphic discussion of sexual acts, and commentary on the employee’s body and the sexual uses to which it could be put. To state a cause of action on this theory, it is sufficient to allege that a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor’s unwelcome sexual advances.” (Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414 [26 Cal.Rptr.2d 116], internal citations omitted.)
  • “Cases based on threats which are carried out are referred to often as quid pro quo cases, as distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment. The terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether, but beyond this are of limited utility

. . . [¶] We do not suggest the terms quid pro quo and hostile work environment are irrelevant to Title VII litigation. To the extent they illustrate the distinction between cases involving a threat which is carried out and offensive conduct in general, the terms are relevant when there is a threshold question whether a plaintiff can prove discrimination in violation of Title VII. When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII. For any sexual harassment preceding the employment decision to be actionable, however, the conduct must be severe or pervasive.” (Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, 751, 753–754 [118

S.Ct. 2257, 141 L.Ed.2d 633].)

Secondary Sources

Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The California Fair Employment And Housing Act, ¶¶ 7:150, 7:166, 7:168–7:169, 7:194 (The Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-A, Sources Of Law Prohibiting Harassment, ¶¶ 10:18–10:19, 10:22, 10:31 (The Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual Harassment, ¶¶ 10:40, 10:50 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual Harassment, §§ 3.31–3.35

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.81[1][a], [6] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment

Discrimination, § 115.36[5][b] (Matthew Bender) California Civil Practice: Employment Litigation § 2:55 (Thomson Reuters)

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