By: Amy Epstein Gluck

Of the types of sexual harassment, the one we see far less of is quid pro quo harassment. Why? Because it’s SO OBVIOUSLY wrong that most perpetrators (predators?) know it is unlawful.

Case in point:

One franchisee just settled a 2015 sexual harassment lawsuit for $80,000 after a former general manager (GM) solicited sex from two teenage girls applying for jobs.

As the lawsuit alleged, this GM sent text messages to two 17-year-old job applicants.

The GM’s text to one applicant said “Bang my brains out and the jobs is yours,” according to the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that investigates and enforces federal anti-discrimination laws like Title VII of the Civil Rights Act of 1964 (Title VII), which proscribes sexual harassment.

The GM texted one applicant asking “how badly do you need a job?” and later texted “we swap (pictures) and decide” before he sent the victim a photo of “himself.”

I’m talking explicit photos of his nether-regions. Not his headshot and not his profile pic on Insta.

In any event, in both cases, the teenaged applicants refused to send photos, refused the GM’s sexual advances, and were not hired (shocking, I know).

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You can read all about the case and settlement in the EEOC’s press release here.

But What’s This Latin Phrase You Spouted? 

But wait, you may think, what the GM texted was gross and he seems like a perv, but the girls who applied for these jobs weren’t even employees! How can the employer potentially be liable for sexual harassment?

Ah, you see Title VII protects employees and job applicants from sexual harassment.

The GM’s conduct falls into the quid pro quo harassment category, which occurs when a manager, supervisor, or executive (any person with the authority to hire or fire) offers or even hints to provide another employee with a promotion, raise, or even a job or other benefit if that employee will provide some kind of sexual favor. This also occurs when a manager or other authority figure threatens to terminate or take some other adverse action against an employee if the employee does not acquiesce to performing some kind of sexual favor.

We Saw This Type of Harassment At the Inception of the #MeToo Movement…In Spades

Remember the dawn of the #MeToo movement fourteen months ago?

If not, let me remind you. In October 2017, various women began hurling allegations at Harvey Weinstein and his eponymous company, which I wrote about here (and for months after). Allegations included that Weinstein required women to have casting discussions with aspiring actresses after they had private appointments in his hotel room. They talk about being asked to watch him take a shower or a bath or handle “turn down” service as he got ready for bed. One person reported that when invited to a hotel, Weinstein offered to “boost her career” if she accepted his sexual advances.

That’s quid pro quo! Many of these allegations of sexual harassment were made by the company’s employees and women seeking employment, i.e., “job applicants.”

I told you about similar conduct here, describing a corporate culture of managers that pushed female subordinates into sex by offering them better jobs, higher pay, or protection from punishment.

Title VII prohibits all of it, including this type of conduct perpetrated against people who are just applying for a job.

Employer Takeaways

This can be tough for franchisees who walk into a company culture that is often already set, but the takeaways are the same:

  • Have a clear, no-tolerance sexual harassment policy in your employee handbook clarifying that the policy applies to job applicants as well as employees; ensure it is disseminated throughout your company and understood by all of your employees;
  • In that same handbook, provide a written procedure for reporting and investigating claims of unlawful harassment and follow it, documenting the process along the way. Have clear standards for what merits what kind of discipline;
  • Hold individuals accountable in a fair and proportionate matter for misconduct, regardless of rank or rainmaking ability. This includes holding accountable employees who fail to respond to reports of harassment and anyone who retaliates against a person who reports, corroborates, or intervenes to stop harassment;
  • Provide regular, interactive training so that employees can recognize, respond to, and prevent unlawful harassment (based on sex, race, age, etc.) tailored to your workplace and include management training;
  • Encourage reporting of any unlawful harassment and convey, via your policies and practices, that your company prohibits retaliation;
  • Make the “organizational climate” part of your HR planning. Here’s what I mean—consider, What kind of culture is my workplace breeding? Is it one where sexual harassment is tolerated? Managers and supervisors can create a zero-tolerance workplace free of harassment or can create a culture of harassment; and
  • Critically, maintain a “top-down” culture prohibiting unlawful harassment, which demonstrates commitment to employees from the C-Suite to the mailroom to maintain a culture of respect in which harassment based on protected characteristics is not tolerated.

The franchisee in question has  committed to many of these prevention policies, which is good because as EEOC Regional Attorney Jeffrey Burstein explained: “Conditioning hiring in exchange for sexual favors, known as quid-pro-quo sexual harassment, is exactly the type of behavior that has made the deserved momentum around #MeToo continue to grow stronger.”

Employers, you want to nip this type of conduct in the bud…before it infects your workplace; otherwise, you may find yourself the subject of the next EEOC press release.