Title VII of the United States Code does not proscribe all conduct of a sexual nature in the workplace. Thus it is crucial to clearly define sexual harassment: only unwelcome sexual conduct that is a term or condition of employment constitutes a violation. The Equal Opportunity Employment Commission (EEOC‘s) Federal Guidelines define two types of sexual harassment: “quid pro quo” and “hostile environment.” The Guidelines provide that “unwelcome” sexual conduct constitutes sexual harassment when “submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,” “Quid pro quo harassment” occurs when “submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual,” The Supreme Court established that both types of sexual harassment are actionable under section 703 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), as forms of sex discrimination.
Although “quid pro quo” and “hostile environment” harassment are theoretically distinct claims, the line between the two is not always clear and the two forms of harassment often occur together. For example, an employee’s tangible job conditions are affected when a sexually hostile work environment results in a constructive discharge. Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult whether based on sex, race, religion, or national origin. Similarly, a supervisor who makes sexual advances toward a subordinate employee may communicate an implicit threat to adversely affect her job status if he/she does not comply. “Hostile environment” harassment may acquire characteristics of “quid pro quo” harassment if the offending supervisor abuses his authority over employment decisions to force the victim to endure or participate in the sexual conduct. Sexual harassment may culminate in a retaliatory discharge if a victim tells the harasser or his/her employer that he/she will no longer submit to the harassment, and is then fired in retaliation for this protest. Under these circumstances it would be appropriate to conclude that both harassment and retaliation in violation of section 704(a) of Title VII have occurred.
Distinguishing between the two types of harassment is necessary when determining the employer’s liability. But while categorizing sexual harassment as “quid pro quo,” “hostile environment,” or both is useful analytically, these distinctions should not limit an investigations, which generally should consider all available evidence and testimony under all possibly applicable theories
Remember also, that the gravamen of a sexual harassment claim is that the alleged sexual advances were “unwelcome.” Therefore, the fact that sex-related conduct was ‘voluntary,’ in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. Rather, the correct inquiry is whether [the victim] by his/her conduct indicated that the alleged sexual advances were unwelcome, not whether the actual participation in sexual intercourse was voluntary.
