To establish a claim for quid pro quo sexual harassment in California, the employee must prove ALL of the following:

  1. That the person bringing the claim (that is, the plaintiff) was an employee for the employer or applied for a job, or was providing services pursuant to a contract;
  2. That a harasser made unwanted sexual advances to the employee 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 the employee’s acceptance of the harasser’s sexual advances or conduct;
  4. That at the time of the harasser’s conduct, the harasser was a supervisor or agent of the employer;
  5. That the employee was harmed; and
  6. That the harasser’s conduct was a substantial factor in causing Plaintiff’s harm.

Harassment in the workplace

California 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. A cause of action for quid pro quo harassment involves the behavior most commonly regarded as sexual harassment, including, for example, 1) sexual propositions, 2) unwarranted graphic discussion of sexual acts, and 3) 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.

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. For any sexual harassment preceding the employment decision to be actionable, however, the conduct must be severe or pervasive. For example, the plaintiff's supervisor repeatedly implying that your career advancement depended on your willingness to be more sexually cooperative could constitute quid pro quo sexual harassment. To be actionable as quid pro quo sexual harassment, the participation in unwanted sexual acts is a condition of the employee’s employment-a critical condition that affects a substantial change in the terms of that employment, and only a supervisor or other person acting with the authority of the company can exercise that leverage.

The employer can raise a defense that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the employee unreasonably failed to take advantage of any preventing or corrective opportunities provide or to avoid harm. That is why the employee must complain of sexual harassment and take advantage of any internal policies or procedures to eliminate harassment in the workplace. This may include notifying human resources or another supervisor of the harassing conduct so the employer can remedy the situation. The employer is subjected to legal liability for an actionable hostile environment created by a supervisor with immediate or successively higher authority over the employee.

Joshua Cohen Slatkin
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Personal Injury & Employment Lawyer Serving Greater Los Angeles