The Complexities of Human Behavior

• DOI: 10.1177/0734371X9601600403
• Author: Paul S. Greenlaw,Robert D. Lee
• Date: 01 October 1996
• Published date: 01 October 1996
• Subject Matter: Articles

The Complexities of
Human
Behavior
Recent Instances of Alleged Quid Pro
Quo Sexual Harassment
Robert D. Lee, Jr. and Paul S. Greenlaw
The Pennsylvania State University
QUID PRO QUO SEXUAL HARASSMENT, ONE OF THREE TYPES OF SEXUAL DISCRIMINATION IN EMPLOYMENT, ENTAILS
SUPERVISORS MAKING SEXUAL ADVANCES OR DEMANDS FOR SEXUAL FAVORS ON THEIR SUBORDINATES. A
FIVE-
ELEMENT TEST USUALLY IS APPLIED TO DETERMINE WHETHER
QUID PRO QUO HARASSMENT AS PROHIBITED BY TITLE
VII OF THE CIVIL RIGHTS ACT OF 1964 HAS OCCURRED. THREE OF THOSE FIVE ELEMENTS PRESENT MAJOR HURDLES
FOR LITIGANTS. BURDEN-OF-PROOF REQUIREMENTS PRESENT ADDITIONAL MAJOR CHALLENGES. DESPITE THESE
PROBLEMS, PLAINTIFFS CAN BE SUCCESSFUL AND CAN WIN SUBSTANTIAL REMEDIES. SEVERAL DIFFERENCES, HOWEVER,
EXIST AMONG
THE FEDERAL CIRCUITS, AND THESE PROBLEMS NEED TO BE RESOLVED BY THE SUPREME COURT AND/
OR CONGRESS. GOVERNMENT AGENCIES, BY BECOMING AWARE OF THE LEGAL PROVISIONS ASSOCIATION WITH
QPQ SEXUAL HARASSMENT, CAN TAKE STEPS TO AVOID THE OCCURRENCE OF SUCH HARASSMENT AND THEREBY
AVOID BEING SUED BY THEIR WORKERS.
1 exual harassment is one of the most
&dquo;blackmail.&dquo; Courts have developed a
widely discussed topics in the field
of
five-element test for determining the ex-
employment law in the 1990s. In
istence of QPQ harassment, and three of
1991, national attention was focused on
the test’s five parts have been particularly
the alleged harassment of Anita Hill by Su-
at issue in the courts. The
burden of proof
preme Court nominee Clarence Thomas
imposed upon plaintiffs, as will be seen,
and the treatment of Navy women offic-
is substantial, raising the issue of whether
ers by male pilots in the Tailhook incident.
those harassed may face exceptionally dif-
Since then, sexual harassment has been
ficult legal hurdles in winning their battles
regularly in the news both in terms of
in court. The remedies available under
high-profile cases, such as that involving
Title VII of the Civil Rights Act of 1964, as
Senator Bob Packwood of Oregon, and
amended by the Civil Rights Act of 1991,
many
other cases involving employees in
are also considered.
both the public and private sectors.
This article examines recent legal de-
Overview
velopments pertaining to one form of
Sexual harassment is inflicted on both men
sexual harassment known
as quid pro quo
and women, but women are the typical
(QPQ) harassment, which is the demand
victims. Studies have found that a major-
for sexual favors and other forms of sexual
ity of working women experience sexual
15

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harassment sometime during their careers
supervisors (Lee and Greenlaw, 1995).
(National Council for Research on Women,
Quid pro quo harassment, which is the
1991). In a 1995 study of federal workers,
subject of this article, entails typically a
19 percent of the men and 44 percent of
male supervisor demanding sexual favors
the women reported being sexually ha-
of a woman
subordinate as a condition of
rassed (U.S. Merit Systems Protection
employment. Although quid pro quo ha-
Board, 1995: 15). Harassment takes a psy-
rassment cases are common
in the federal
chological toll on victims, resulting in in-
courts, the Supreme Court has not dealt
creased absenteeism, sometimes resigna-
with any such case. The Court’s silence
tion from the job, and psychological dis-
may be because the issues in QPQ cases
orders that can require treatment over
often seem clear-cut, unlike issues in hos-
extended periods (Stockdale, 1996;
tile environment cases, but the following
Vinciguerra, 1994).
discussion shows that the time may be
The main legal workhorse against
propitious for the Court to review how the
sexual harassment is Title VII of the Civil
law is applied to QPQ cases.
Rights Act of 1964 which bars employment
While this article focuses upon quid pro
discrimination based on &dquo;race, color, reli-
quo harassment, one should understand
gion, sex, or national origin.&dquo; The law pro-
that multiple charges of discrimination are
hibits discrimination &dquo;with respect
common in court cases. Plaintiffs may
to...compensation, terms, conditions, or
claim not only discrimination based on
privileges of employment.&dquo; Although the
their gender but also discrimination based
law does not mention sexual harassment,
on
race, religion, age, and disability. Mul-
it has come to be regarded as a form of
tiple avenues of redress are available in
sexual discrimination prohibited by the
terms of federal and state laws. Moreover,
law. In 1980, almost two decades after
in addition to antidiscrimination legisla-
passage of the law, the Equal Employment
tion public employees may have a choice
Opportunity Commission issued ground-
of using civil service and labor relations
breaking guidelines on harassment, and
laws in sexual harassment situations. It
subsequently the Supreme Court recog-
should be mentioned that the 1972 Title
nized sexual harassment as being barred
IX Amendments to the Education Act have
by the law (U.S. E.E.O.C., 1980; Meritor
been ruled by the Supreme Court to pro-
Savings Bank, FSB v. Vinson, 1986; also see
hibit QPQ harassment in educational set-
Harris v. Forklift Systems, Inc., 1993).
tings (Franklin v. Gwinnett County Public
Sex discrimination consists of three
Schools, 1992).
types. The &dquo;basic&dquo; form involves denial
The following analysis considers recent
of employment opportunities based sim-
federal court cases pertaining to quid pro
ply on one’s sex, such as being denied a
quo discrimination. Since Title VII applies
job, promotion, or pay increase. The other
to both public and private employers, court
two are forms of sexual harassment--quid
decisions from both sectors are discussed.
pro quo and hostile environment. Hos-
The outcomes of private sector lawsuits are
tile environment harassment pertains to
regularly applied to public sector cases and
a sexually charged work situation and can
vice versa. Primary emphasis, however, is
be perpetrated by both co-workers and
given to public sector cases.
16

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The Five-Element Test
federal courts in that it has rejected the
five-element test
The Equal
as
Employment Opportunity
being &dquo;unnecessarily
Commission, which enforces Title VII in
complicated and overly formalistic&dquo; and
conjunction with state and regional hu-
&dquo;opaque&dquo; (Nichols v. Frank, 1994 : 511). El-
ements 1 and 3, for instance, are consid-
man
relations commissions, has issued the
ered
above-mentioned
obvious,
guidelines, which de-
namely that everyone is part
of
fine sexual harassment
a protected
as follows:
group, since one is either a
man
or a woman, and sex was clearly in-
Unwelcome sexual advances, requests for
volved (#3), since that is the basis of the
sexual favors, and other verbal or physical
case. Elements 2 and
3, the court has held,
conduct of a sexual nature constitute harass-
ment when (1) submission to such conduct
overlap excessively. Nevertheless, most
ismade either explicitly or implicitly a term
other federal courts apply the five-ele-
or condition of an mdmidual’s
employment
ment test.
[and] (2) submission to or rejection of such
When a plaintiff wins a quid pro quo
conduct by an individual is used as the ba-
case, the employer is held strictly liable for
sis for employment decisions affecting such
individual...(U.S. EEOC, 1980).
the offense. The plaintiff must show that
her superior harassed her and that her
Most circuit courts have endorsed a
superior served as an &dquo;agent&dquo; of the em-
five-element test to gauge whether plain-
ployer. The plaintiff need not show why
tiffs have shown they have been subject
the employer should be held accountable,
to quid pro quo harassment:
since the presumption is made that the
1. The employee must show being part of
supervisor was acting on behalf of and
a protected class, namely that one’s sex
with full knowledge of the employer
is protected from discrimination.
(Kauffman v. Allied Signal,1992). However,
2. Proof must be given that the employee
proving that the supervisor was an agent
experienced unwelcome sexual
can
be troublesome, as is discussed below.
advances or demands for sexual favors.
Of the five elements in this quid pro quo
3. The harassment was founded upon sex.
harassment test, numbers 2, 4, and 5 are
4. The employee was expected to submit
frequently at issue in court.
to sexual advances or comply with the
demands for sexual favors in order to
Element 2: Sexual Advances and
avoid some detriment in the work
Demands
for Sexual Favors
situation or to receive a job benefit.
Controversies relating to element number
5. The employer is liable under Title VII.
2 center on whether alleged behavior oc-
Here the concept of respondeat
curred and on whether specific behavior,
superior is used in which the employer
whose existence is uncontested, consti-
is held answerable or responsible for
tuted harassment. The first line of defense
the actions of a supervisor who
for the supervisor is to deny flatly having
demanded sexual favors or made
engaged in any harassing behavior, and if
sexual advances (Greenlaw and Kohl,
that fails, to rebut allegations that a spe-
1992).
cific set of actions by the supervisor could
The Court of Appeals for the Ninth Cir-
be considered harassment.
cuit is decidedly at odds with most other
17

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Some
behavior is unquestionably quid
gether and share common interests often
find that sexual attraction ensues.... On
the
pro quo sexual harassment. In one in-
other hand, the...