Ninth Circuit Appears to Extend Quid Pro Quo Theory of Sexual Harassment to Cases in which the Alleged Harasser was not a Supervisor

Today most employers understand that there are generally two theories upon which an employee can sue for sexual harassment.  The first is based on a claim that the employee has been subjected to a sexually hostile and abusive work environment.  The second is based on a claim that the employer either has conditioned a job benefit on the employee's submission to a sexual advance, or conversely threatened an adverse action if the employee did not submit to the advance.  This second type of sexual harassment claim, also known in legal jargon as "quid pro quo" harassment, historically has been applied in cases where the person seeking the sexual favor was a supervisor or other employer agent in a position to grant a job benefit or impose a job detriment on the employee who is subjected to the sexual advance; however, the Ninth Circuit recently indicated that a claim for quid pro quo harassment is not necessarily limited to situations where the alleged offender has supervisory authority over the employee at the time of the sexual advance.  It also can apply in situations where the person making the sexual advance is merely a coworker at the time of the advance but is later promoted and then takes reprisals against her for having earlier spurned his advance.  The case in which this issue was addressed is Porter v. California Department of Corrections, which was decided on September 10, 2004.

In Porter, the plaintiff, a female correctional officer, alleged that she had been subjected to ongoing discrimination, harassment and retaliation because she had rejected sexual advances from two male correctional officers.  While many of the acts complained of occurred outside of the applicable time limitations period under Title VII (300 days), one such act - a denial of plaintiff's transfer request to another assignment - occurred within the time limitations period.  As to this act, the court concluded that a case had been made out for quid pro quo harassment because the plaintiff's evidence suggested that the two male correctional officers "had impliedly threatened [the plaintiff] with less desirable working conditions if she rejected their sexual advances," and that one of the male officers had denied the plaintiff's transfer request "in order to punish her for having declined his or [the other male officer]'s sexually charged invitations."

In concluding that the plaintiff could bring a claim for quid pro quo harassment, the court conceded that neither of the male officers was the plaintiff's supervisor at the time the sexual advances were made, and therefore were not then in a position to take reprisals against her for rejecting their advances.  The court also conceded that it had no direct legal authority for extending the quid pro quo theory of recovery to cases where sexual advances are made by co-workers who have no supervisory authority over the plaintiff at the time of the advances.   Nevertheless, the court concluded that Title VII's goal of "promoting workplaces where employment decisions are not based upon an employee's failure to conform to sex-based stereotypes…would be thwarted if we were to find that liability could not attach simply because an alleged harasser was not in fact in a position to exact reprisals at the moment his advances were rebuffed - even where he was entrusted with and abused such authority subsequently." 

A dissenting opinion in the case pointed out that the plaintiff did not allege that either of the two male co-workers had suggested that her employment circumstances were in any way conditioned upon submission to their sexual demands.  The dissenting judge also pointed out that the promotion of one of the offending co-workers to a position where reprisals later could be taken against the plaintiff occurred two years after the plaintiff rejected his sexual advances.  Given this extended lapse of time, there is some question as to whether a causal connection even existed between the plaintiff's rejection of sexual advances and the reprisal.  Unfortunately, neither the majority opinion nor the dissenting opinion adequately addressed this question.

Persons wishing further information or who have questions or comments about either this case or any of the cases that have appeared on this website can contact any of the attorneys at Epstein, Turner & Song.