Title VII is meant to be interpreted broadly in its analysis in order to aggressively attack the problem of sexual harassment in the workplace. The statute itself provides the most basic of guidelines and the courts are left to fill in a more complete picture of actionable behavior. The federal courts begin with the concept that it is a basic violation of Title VII when “an artificial barrier to employment has been placed on one gender and not the other.” This barrier is explained as any sort of condition of employment that is placed on an employee because of gender. The courts thus require a “plaintiff [to] show that but for the fact of her sex, she would not have been the object of harassment.”
From this prima facie point, the plaintiff must distinguish her claim of sexual harassment as being either a claim of quid pro quo sexual harassment or hostile work environment sexual harassment. Quid pro quo sexual harassment is “harassment that involves the conditioning of concrete employment benefits on sexual favors.” The second type of harassment, hostile work environment sexual harassment, is that which does not “[affect] economic benefits [but] creates a hostile or offensive working environment.”
In the general provisions of the Civil Rights Act, sexual harassment is defined as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature.” Simply stated, a plaintiff must begin with a showing that the complained of conduct was sexual in some degree. After establishing the sexual nature of the harassing behavior, the plaintiff, under Michigan law, must satisfy delineated requirements to establish either a quid pro quo or a hostile work environment sexual harassment claim.
Quid Pro Quo Sexual Harassment
On its face, Title VII does not distinguish between quid pro quo and hostile work environment sexual harassment; federal case law develops these distinctions and their application. The Supreme Court case Burlington Industries, Inc. v. Ellerth, clearly lays out the elements of quid pro quo sexual harassment. This case explains that for an employer’s conduct to rise to the level of quid pro quo sexual harassment a “tangible employment action [must] [result] from a refusal to submit to a supervisor’s sexual demands.”
A tangible employment action is any change in position, benefits, duties or even job loss. The Court in Burlington found that the employer’s behavior, which amounted to verbal hazing and unwelcome touching, did not amount to quid pro quo sexual harassment because the plaintiff, Ms. Ellerth, did not experience any change in her job for her refusal to submit to her supervisor’s advances.
The Court saw a clear example of quid pro quo sexual harassment in Barnes v. Costle, however, when the Environmental Protection Agency abolished Ms. Barnes’ position as a direct result of her refusal to engage in sexual relations with her male supervisor. The court found that the supervisor “solicited [Ms. Barnes]. . .[and] suggested that she cooperate with him in a sexual affair” in order to better her job position.
When Ms. Barnes did not cooperate, her job duties were diminished and her position was ultimately abolished. The behavior of the supervisor in this case presents a clear and concise example of quid pro quo sexual harassment. The federal courts conclude that for an employer’s actions to rise to the level of quid pro quo sexual harassment the behavior must involve the conditioning of employment on sexual favors, this conditioning must be based on the gender of the employee and culminate in a change in the benefits or existence of employment. Quid pro quo sexual harassment is a clear violation of Title VII and a court will readily find this type of behavior to rise to the level of inexcusable sexual harassment in the workplace.