Proving Quid Pro Quo — Does sexual harrassment law follow the “Hannibal Lecter” rule? October 14, 2019

 

Anthony Hopkins as Hannibal Lecter in Silence Of The Lambs     

By:  Ann-Marie Ahern and Jack Moran

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The term “quid pro quo” has featured quite prominently in recent headlines.  The term’s return to public vernacular calls to mind (for these authors at least) Dr. Hannibal Lecter’s famous dialogue with Agent Clarice Starling in 1991’s “The Silence of the Lambs.”  In one scene, Starling consults with the imprisoned Lecter, who is both a genius and a convicted murderer, for help tracking down a serial killer.  In these discussions, the demented Lecter becomes creepily fascinated with Starling, and insists that she tell him personal details about herself as a condition of his assistance with her case.  In an iconic scene, Lector makes his expectations clear: “Quid pro quo. I tell you things, you tell me things.”

Quid pro quo” is a Latin expression meaning “something for something.”  As applied in sexual harassment law, quid pro quo is a type of claim that results when some job benefit is conditioned upon submission to sexual advances.   Lecter used this term in a way that was explicit.  In employment cases, however, it typically isn’t quite as direct.

Take, for example, a situation in which a supervisor at a sales convention meets an employee at the convention’s social outing and tells her that she has a bright future with the company and her career looks promising.  Perhaps he offers to help the employee with her career advancement.  In the same conversation, the supervisor invites the employee to his hotel room that evening – but he never explicitly says that he wants “something for something” (e.g., “If you sleep with me, you will advance in your career”).  Does this support a quid pro quo sexual harassment claim?

Even if the supervisor isn’t as direct as Hannibal Lecter, the employee has a viable claim.  In order to bring a “quid pro quo” sexual harassment claim, an employee needs to simply prove that her “submission to the unwelcome advances was an express or implied condition for receiving job benefits.”  Schmitz v. Bob Evans Farms, 120 Ohio App.3d 264, 269, 697 N.E.2d 1037 (8th Dist. 1997).  In other words, even if the “something for something” exchange isn’t directly stated, the employee still has a claim if it can be inferred from the circumstances.

For example, suggesting to a female subordinate that her career looks promising, and then inviting her – in the same conversation – to engage in a sexual act, implies that a successful career path and accepting the invitation to the hotel room are tied together.  The dynamic works in the opposite direction, as well – when an employee receives poor reviews, and a manager then makes a sexual advance on the employee and says “things don’t have to be this way,” that is enough to prove quid pro quo harassment.  Shrout v. Black Clawson Co., 689 F. Supp. 774, 780 (S.D. Ohio 1988).  Mentioning the consequence (i.e., withholding some benefit) in the same conversation as request for a “favor” of a sexual nature is sufficient to establish quid pro quo.

In fact, a supervisor doesn’t even need to mention anything about employment when he makes his sexual advances.  Even in that case, an employee still may have a viable claim, if she refused the sexual advances and can show that her “refusal to submit to the supervisor’s sexual demands resulted in a tangible job detriment.”  Schmitz, 120 Ohio App.3d at 269.  For example, if an employee was enjoying success at work, then refused a sexual act with a supervisor, and then shortly thereafter suffered a dramatic change in career trajectory, the law says this alone could be enough to support a quid pro quo sexual harassment claim.  In that case, the supervisor wouldn’t have even implicitly said that sex was tied to employment success.  But the law permits such claims if there is “circumstantial evidence of a causal connection” – like when a demotion, pay cut, or termination has close “temporal proximity” (close in time) to “the employee’s rejection of the supervisor’s sexual advance.”  Nolan v. Indus. Sorting Servs., E.D.Tenn. No 10-cv-142, 2012 U.S. Dist. LEXIS 68908, *24 (May 18, 2012).

Of course, employees can also bring sexual harassment claims even if sexual acts were never linked to their job security in any way.  If an employer’s environment includes sexually harassing conduct that is either “severe” or “pervasive,” that can be enough to support a “hostile work environment” claim even if the employee’s job security was not implicated at all.  Either way, employers, managers, and employees should be mindful that “quid pro quo” doesn’t require an overt, categorical “something for something” proposal.  Not all quid pro quo is as obvious as Hannibal the Cannibal.

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