Hughes v. Pair Presents Potential Quid Pro Quo Loophole

DSCN1962The California Supreme Court in Hughes v. Pair (July 2009) ruled that sexual requests to a plaintiff, without consequential adverse action in response to a plaintiff’s refusal to comply with sexual favors, does not constitute quid pro quo sexual harassment. After the plaintiff’s trustees had voted to give her money for just one month for the rental of a beach house inMalibu, the perpetrator told the plaintiff that if she was “nice” to him, he would get her the additional month’s rent. Later that same day, the perpetrator, in vulgar language, said that he would have her sexually somehow.

First the Supreme Court judged the case by the standards of “pervasive” or “severe” that aptly apply to hostile work environment. The Supreme Court ruled that the perpetrator’s statements were not “pervasive” because the conduct only constituted comments made during one telephone call and one other brief statement occurring that same day. The justices decided that the conduct was not “severe” because the statements by the perpetrator did not amount to a “threat to commit a sexual assault” and implicitly because there was not an offensive touching.

The California Supreme Court then said that the conduct of the perpetrator was not quid pro quo sexual harassment, because his comments at most amounted to unfulfilled threats.

The Supreme Court created a potential loophole in quid pro quo sexual harassment. In the Hughes v. Pair case, the perpetrator proposed a benefit in exchange for sexual favors. If the perpetrator had proposed a detriment in exchange for sexual favors, and carried through with the
Whether or not a perpetrator’s behavior is sexual harassment should not depend upon the reaction of the targeted victim. The analysis of the California Supreme Court in Hughes v. Pair suggests that there is only quid pro quo sexual harassment when the targeted victim is vulnerable enough to submit to providing the sexual favor demanded.detriment, then that would certainly qualify as quid pro quo sexual harassment. So the question remains, if a perpetrator proposes either a benefit or a detriment in exchange for a sexual favor, and if the sexual favor is not granted and the perpetrator then does not follow through with the benefit or the detriment, then presumably there is no sexual harassment. Ironically, if the victim exchanges the sexual favor for the benefit or detriment, then that presumably is sexual harassment.

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