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Monday, May 16, 2022

NJ Sex Discrimination Attorney, Is There a Difference in Quid Pro Quo and Hostile Work Environment?

Is there a difference in quid pro quo and hostile work environment claims in NJ? Yes. Generally American case law divides sexual harassment petitions into two basic types of claims - quid pro quo sexual harassment and hostile work environment. Both may exist simultaneously and frequently do. Quid pro quo sexual harassment and hostile work environment require different facts to be proved for the claim to be valid. 

Quid Pro Quo

“Quid pro quo” is a Latin phrase roughly translated in English to mean an exchange of “something for something” in which one transfer is contingent upon the other. Quid pro quo harassment explicitly culminates in a tangible employment action. If an employer attempts to coerce an employee's yielding to sexual demands as a condition of employment, it is quid pro quo sexual harassment. In Quid Pro Quo claims there must be of a tangible employment action or loss of income. There need not be an actual termination. It could be being passed over for promotions, having one’s hours reduced, being demoted, being transferred to a less desirable work locations, receiving warnings and negative performance evaluations or being place on a Performance Improvement Plan, if the harassed employee does not yield to the sexual demands.

What’s Essential in a Quid Pro Quo Claim

Although it need not lead to an actual termination, in quid pro quo harassment, what is essential is that it involves a threat, implicit or explicit, that if the employee does not agree to the employer’s sexual demands, the employee will suffer a “tangible adverse” employment consequence. The person doing the harassment must be a manager or supervisor with influence or authority to control the conditions of the employee who is the victim. The implicit or explicit message is that the employee must tolerate the harasser’s actions in order to receive a beneficial, tangible employment action such as a raise in salary or promotion or for the employee to avoid a detrimental, tangible employment action befalling her or him.

Quid pro quo sexual harassment claims need not involve overt unwelcomed touching. In some instances, if an employee rejects the boss’s requests for dates or refuses to meet the boss at a bar to go for drinks, and the employee is thereafter abruptly transferred or has her hours slashed, depending on the totality of the circumstances, a court could determine it to be quid pro quo harassment.

Hostile Work Environment

A Hostile Work Environment claim in NJ does not require a tangible employment action, such as a reduction in pay. The illegal harm to the employee is the hostile work environment itself which is considered damaging to the employee. A hostile work environment occurs when an employer, supervisor, or co-workers harass an employee because of his or her being a member of a protected class,  to the degree at which the working environment becomes toxic and hostile.

A hostile work environment claim could involve many discrete harassing acts over time or sometimes an egregious act such as unwanted sexual touching. Quid pro quo sexual harassment is a long-acknowledged cause of action and it is frequently more clearly articulated. Quid pro quo may be more easily recognizable than a hostile work environment claim which could involve many discrete acts over time, but without any tangible employment action such as a demotion.

Quid Pro Quo Sexual Harassment Is Illegal in NJ Contracts in Addition to the Employment Context.

In 2010, the NJ Appellate Court heard a case involving a tire service company and its owner who alleged that a manager at a rental company tried to extort sexual favors from the female owner as a condition of allowing her company to continue doing business with them. Plaintiffs alleged that because she refused the rental company manager's sexual advances, the rental company stopped contracting with them. The court held that plaintiffs' complaint stated a cause of action for a discriminatory refusal to do business, under New Jersey’s Law Against Discrimination (LAD).

In issuing its decision, the court stated that the plaintiffs alleged that the female owner was subjected to quid pro quo sexual harassment, and therefore that is the only issue the court had to address. The court stated that based on plain language of the LAD, N.J.S.A. 10:5-12(l), the court had no hesitation in concluding that quid pro quo sexual harassment violates subsection (l) of the statue. According to the complaint, the rental agency stopped doing business with Plaintiffs because the owner refused to submit to sexual demands from the rental agency’s manager. Those allegations state a cause of action under N.J.S.A. 10:5-12(l).

The Court noted that quid pro quo sexual harassment in contracts as alleged in the complaint, if legally permitted, would stand as a barrier to women's ability to do business on an equal footing with men. It construed N.J.S.A. 10:5-12(l) to prohibit such conduct to be consistent with the Legislature's intent to eliminate sex discrimination in contracting.

What You Can Do

I am an aggressive and compassionate employment law attorney who is experienced in representing employees who suffered sex, sexual orientation, and gender discrimination, and sexual harassment in the workplace was successful in recovering money for them. If you are being subjected to workplace discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation.

Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in southern, central, western and northern NJ to meet with clients.


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