Quid Pro Quo Sexual Harassment in New York

Quid pro quo ("this for that") harassment happens when someone with power over your job ties a job benefit, or the avoidance of a job penalty, to sexual conduct. New York State's model sexual harassment prevention policy describes it as a person in authority trying to trade job benefits for sexual favors, which can include hiring, promotion, continued employment or any other terms, conditions or privileges of employment.⁠^[1] It is one of the two main types of sexual harassment the State's policy names; the other is a hostile work environment.⁠^[1]

Where the term comes from

"Quid pro quo" is not statutory language under federal law. The U.S. Supreme Court noted in Burlington Industries, Inc. v. Ellerth that neither "quid pro quo" nor "hostile work environment" appears in the text of Title VII; the Court said the terms appeared first in academic writing, then in federal appeals court decisions, and were mentioned in the Court's 1986 decision in Meritor Savings Bank v. Vinson.⁠^[2] In Meritor the Court held that Title VII is not limited to economic or tangible discrimination, so harassment can violate federal law even without a lost job or lost pay.⁠^[8]

The idea does appear in the EEOC's federal regulation, which treats unwelcome sexual advances and requests for sexual favors as sexual harassment when submission is made, explicitly or implicitly, a term or condition of employment, or when submission to or rejection of the conduct is used as the basis for employment decisions.⁠^[9]

New York State's statute is written differently. The New York State Human Rights Law (NYSHRL) makes it an unlawful discriminatory practice to subject a person to harassment because of sex, and asks whether the harassment subjects the person to inferior terms, conditions or privileges of employment.⁠^[7] The New York City Human Rights Law (NYCHRL) has no stand-alone harassment section at all; harassment claims are brought as discrimination in the terms, conditions or privileges of employment.⁠^[10]

What it looks like in practice

The demand does not have to be spelled out. New York State's model policy covers situations where employment depends "implicitly or explicitly" on accepting unwelcome conduct, and where decisions about a person's employment are based on accepting or rejecting it.⁠^[1] The State policy gives these illustrations:

• Requests for sexual favors accompanied by implied or overt threats concerning the person's job performance evaluation, a promotion or other job benefits.⁠^[1]
• Decisions about what shifts and how many hours an employee works, project assignments, salary and promotions that turn on whether the person accepted or rejected the conduct.⁠^[1]
• Subtle or obvious pressure for unwelcome sexual activities, and repeated requests for dates or romantic gestures, including gift-giving.⁠^[11]

The State policy also flags a version of the problem that does not involve a boss: sexual advances or pressure placed on a service-industry employee by customers or clients, especially where hospitality and tips are essential to the relationship.⁠^[11] That situation is covered in tipped workers, retail, hospitality and domestic work.

Federal law: carried-out threats and unfulfilled threats

Under federal Title VII the label matters most for one question: was the threat carried out? When an employee proves that a tangible employment action resulted from refusing a supervisor's sexual demands, the employment decision itself is a change in the terms and conditions of employment that is actionable under Title VII.⁠^[12] When the threats are never carried out, the claim is treated as a hostile work environment claim, and under federal law the conduct must be severe or pervasive.⁠^[12][13]

A tangible employment action, in the Supreme Court's words, is a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.⁠^[14]

Giving in is not, by itself, a defense to a federal claim. The Supreme Court held in Meritor that the fact that sex-related conduct was "voluntary," in the sense that the person was not forced to participate against their will, is not a defense under Title VII; the core question is whether the advances were unwelcome.⁠^[15]

When is the employer responsible?

The State model policy describes quid pro quo conduct as coming from a person in authority, and each layer of law has its own rule for when the employer answers for that person.⁠^[1]

Layer	Rule for harassment by someone with authority
Federal (Title VII)	If a supervisor's harassment culminates in a tangible employment action, such as discharge, demotion or undesirable reassignment, the employer is strictly liable and no affirmative defense is available.⁠[4]
Federal (Title VII), no tangible action	The employer may raise an affirmative defense by proving both that it exercised reasonable care to prevent and promptly correct harassment and that the employee unreasonably failed to use the preventive or corrective opportunities it provided.⁠[16]
New York State (NYSHRL)	The fact that the person did not complain to the employer is not determinative of whether the employer is liable.⁠[7] Court of Appeals decisions that predate the 2019 amendments held that an employer is liable for an employee's discriminatory act only if it became a party to it by encouraging, condoning or approving it.⁠[17]
New York City (NYCHRL)	The employer is liable for harassment by an employee or agent who exercised managerial or supervisory responsibility.⁠[5] The federal affirmative defense does not apply.⁠[18]

For federal purposes, "supervisor" means a person the employer has empowered to take tangible employment actions against the victim.⁠^[19] The EEOC's current summary of federal law says the employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, or loss of wages.⁠^[20]

Under the City law, an employer's anti-harassment policy does not remove liability for a supervisor's conduct; where it applies, it mitigates civil penalties and punitive damages, while compensatory damages, costs and attorney's fees remain recoverable.⁠^[21] The fuller comparison is in supervisor or coworker: when the employer is legally responsible.

The person who made the demand may also face claims personally under State and City law. The State Human Rights Law makes it an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce a forbidden act.⁠^[22] The City Human Rights Law's employment prohibition applies to "an employer or an employee or agent thereof."⁠^[23] See can I sue my boss personally?

Is one incident enough?

Each layer answers the question differently.

• Federal law. A single tangible employment action that results from refusing a supervisor's sexual demands is itself actionable under Title VII.⁠^[12]
• New York State law. The State's model policy says any harassing conduct, even a single incident, can be discrimination, and the statute applies regardless of whether the harassment would be considered severe or pervasive.⁠^[1][7]
• New York City law. Courts have said even a single comment may be actionable in the proper context, and the conduct need not be tangible like a hiring or firing.⁠^[24][6]

The State and City laws each leave the employer a defense for trivial conduct: under the State statute, that the conduct does not rise above what a reasonable victim with the same protected characteristics would consider petty slights or trivial inconveniences, and under the City law a similar defense the employer has to prove.⁠^[7][25] See can a single incident be enough?

What you do not have to show

• A comparison to a coworker. Under the State Human Rights Law, an employee does not have to identify another person who was treated better.⁠^[7]
• An economic loss. Under federal law, Title VII is not limited to economic or tangible discrimination.⁠^[8]
• Good job performance. A federal appeals court applying the City Human Rights Law wrote that even a poorly performing employee is entitled to an environment free from sexual harassment.⁠^[6]
• That the person meant harm. New York State's model policy says not intending to harass is not a defense.⁠^[1]

If you refuse or report and things get worse

Punishing someone for refusing or reporting is a separate legal problem. The State Human Rights Law bars an employer from discharging or otherwise discriminating against a person because they opposed forbidden practices or filed a complaint, testified or assisted in a proceeding.⁠^[26] New York State's model policy lists demotion, termination, reduced hours, refusing to provide a reference and labeling an employee as "difficult" among its examples of retaliation.⁠^[27] The details are in retaliation after reporting sexual harassment.

Practical steps and time limits

A practical record helps whatever you decide to do: write down the date, the exact words used, who was present, and any change to your schedule, pay or assignments that followed. Keep copies of messages you received on your own devices. The guide to building a record covers this.

Under New York State's model policy, a report to the employer can be made verbally or by email, and the written complaint form is optional.⁠^[28] The same policy warns that complaining internally does not extend the time to file with the Division of Human Rights or in court.⁠^[29] A complaint to the State Division of Human Rights must be filed within three years after the alleged unlawful discriminatory practice.⁠^[30] In New York City, a claim of gender-based harassment may be filed with the NYC Commission on Human Rights within three years after the harassing conduct occurred.⁠^[31] The federal EEOC charge period in New York is 300 days from the alleged harm, for employers with 15 or more employees.⁠^[32] All of the periods are set out in the deadlines table, and reporting options are in how to report harassment to your employer.