Sometimes it is easy to determine who is the “supervisor,” and sometimes it’s not. For example, who is higher in the organizational chart – the “Assistant Regional Manager” or the “Regional Director in Charge of Sales”?

For approximately the last ten years, the law has been that a person is a “supervisor” if he or she is “empowered by the employer to take tangible employment actions against the victim.” Therefore, it technically doesn’t matter what a person’s job title is, though it can often give us a clue. Instead, did the person hire you without running it by anyone else? If so, he or she is likely a “supervisor.” Can that person fire you? Then he or she is a supervisor. Anyone who has the ability to hire, promote, demote, or fire you is a supervisor – and anyone who can’t do those things is not.

Keep in mind one additional layer of complexity. If, as part of the harassment, your harassing supervisor actually took a “tangible employment action” against you – like demoting you, not promoting you for an open position, or firing you – then your employer is legally responsible for the harassment and will not have much of a defense. But many times, harassing supervisors don’t go so far as to fire their victims but are simply content to subject them to regular workplace harassment, knowing that the victims cannot do much about it lest they put their jobs at risk. In this way, it is only the specter of a harassing supervisor’s ability to fire you that looms in the background. In those cases, where no “tangible employment action” has been taken against you by the supervisor, your employer is still responsible but can avoid liability by proving that (1) you failed to take advantage of “corrective opportunities” (for example, following the handbook’s policy on harassment reporting) and (2) the employer took reasonable steps to stop the harassment.

Taken together, a victim of workplace harassment often needs to speak up, as that is the surefire way to avoid any debate about whether the victim “failed to take advantage of corrective opportunities.” Victims are naturally reluctant to speak up for many understandable reasons, but if there’s doubt about the right procedure to protect your job, it is time to talk to a lawyer.

To seek counsel from our Employment group, please reach out to request a consultation or call us at 216-696-1422.

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“Quid pro quo” is a Latin expression meaning “something for something.” As applied in sexual harassment law, quid pro quo is a type of claim that results when some job benefit is conditioned upon submission to sexual advances. Lecter used this term in a way that was explicit. In employment cases, however, it typically isn’t quite as direct.

Take, for example, a situation in which a supervisor at a sales convention meets an employee at the convention’s social outing and tells her that she has a bright future with the company and her career looks promising. Perhaps he offers to help the employee with her career advancement. In the same conversation, the supervisor invites the employee to his hotel room that evening – but he never explicitly says that he wants “something for something” (e.g., “If you sleep with me, you will advance in your career”). Does this support a quid pro quo sexual harassment claim?

Even if the supervisor isn’t as direct as Hannibal Lecter, the employee has a viable claim. In order to bring a “quid pro quo” sexual harassment claim, an employee needs to simply prove that her “submission to the unwelcome advances was an express or implied condition for receiving job benefits.” Schmitz v. Bob Evans Farms, 120 Ohio App.3d 264, 269, 697 N.E.2d 1037 (8^th Dist. 1997). In other words, even if the “something for something” exchange isn’t directly stated, the employee still has a claim if it can be inferred from the circumstances.

For example, suggesting to a female subordinate that her career looks promising, and then inviting her – in the same conversation – to engage in a sexual act, implies that a successful career path and accepting the invitation to the hotel room are tied together. The dynamic works in the opposite direction, as well – when an employee receives poor reviews, and a manager then makes a sexual advance on the employee and says “things don’t have to be this way,” that is enough to prove quid pro quo harassment. Shrout v. Black Clawson Co., 689 F. Supp. 774, 780 (S.D. Ohio 1988). Mentioning the consequence (i.e., withholding some benefit) in the same conversation as request for a “favor” of a sexual nature is sufficient to establish quid pro quo.

In fact, a supervisor doesn’t even need to mention anything about employment when he makes his sexual advances. Even in that case, an employee still may have a viable claim, if she refused the sexual advances and can show that her “refusal to submit to the supervisor’s sexual demands resulted in a tangible job detriment.” Schmitz, 120 Ohio App.3d at 269. For example, if an employee was enjoying success at work, then refused a sexual act with a supervisor, and then shortly thereafter suffered a dramatic change in career trajectory, the law says this alone could be enough to support a quid pro quo sexual harassment claim. In that case, the supervisor wouldn’t have even implicitly said that sex was tied to employment success. But the law permits such claims if there is “circumstantial evidence of a causal connection” – like when a demotion, pay cut, or termination has close “temporal proximity” (close in time) to “the employee’s rejection of the supervisor’s sexual advance.” Nolan v. Indus. Sorting Servs., E.D.Tenn. No 10-cv-142, 2012 U.S. Dist. LEXIS 68908, *24 (May 18, 2012).

Of course, employees can also bring sexual harassment claims even if sexual acts were never linked to their job security in any way. If an employer’s environment includes sexually harassing conduct that is either “severe” or “pervasive,” that can be enough to support a “hostile work environment” claim even if the employee’s job security was not implicated at all. Either way, employers, managers, and employees should be mindful that “quid pro quo” doesn’t require an overt, categorical “something for something” proposal. Not all quid pro quo is as obvious as Hannibal the Cannibal.

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As well-intentioned as this code section may have been, there were drafting problems. Lawmakers wrote the language of §162(q) in broad terms so that it currently does not distinguish between the plaintiff and the defendant when denying the deduction. Many thought this position was unfair to the plaintiff, who for personal privacy reasons, may also want the protection of a nondisclosure agreement when settling claims involving sexual harassment. It was feared that if the law was applied as written, sexual harassment victims would lose their deduction for attorneys’ fees.

However, the IRS recently provided informal “guidance” on its website stating that the IRS interprets §162(q) as applicable only to the defendant, which is consistent with the Joint Committee on Taxation’s position documented in the December 2018 Bluebook. Essentially this means that the IRS believes the recipient of payments related to sexual harassment or abuse, even if such payment is subject to a nondisclosure provision, is not precluded by §162(q) from deducting attorney fees so long as such fees are otherwise deductible.

Potential plaintiffs working through sexual harassment and abuse claims need to be cognizant of this new interpretation of §162(q) to ensure they do not miss the opportunity to claim a deduction to which the IRS believes they may be entitled.

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By now, most employers have a written policy that prohibits harassment at work and sets forth a process under which employees can report suspected harassment. Many of these policies, however, were drafted 20 years ago and do not reflect today’s workplace or incorporate developments in the law. For instance, a policy that identifies only one person to handle concerns of harassment is insufficient. What if that person is the alleged harasser or is close to the alleged harasser? Following the policy, under those circumstances, may be practically infeasible. Another somewhat common and antiquated feature of some sexual harassment policies is language that states something to the effect of, “if it is determined that your complaint was made in bad faith, then you will be subject to discipline.” This language is ill-advised because it may be read as a deterrent to bringing concerns of sexual harassment forward. Does your policy incorporate the modern state of technology? If your policy refers to Blackberries, facsimile or similar technology but does not address social media or texting, it’s time for a refresh.

2.) Consider Training for Managers and Employees

#MeToo, while bringing the issue of sexual harassment into the light of day, has also generated a lot of confusion about what is and isn’t sexual harassment. Most managers do not know what constitutes sexual harassment and are therefore not in a position to appropriately prevent it. All employees should know what type of conduct the employer expects in the workplace. There is a fair amount of “gray” in this area, and setting forth clear expectations is the best way to remind employees of what will not be tolerated.

3.) Reaffirm the Company’s Commitment to Providing a Workplace Free from Harassment

With all of the attention on sexual harassment recently, employers may be wondering “what has my employer done to address this issue? Do they really care?” A simple email from company leadership proactively expressing the company’s commitment to a harassment-free workplace is a good starting point. A link to the company’s sexual harassment policy would also be helpful.

4.) Consider Implementing a Policy Regarding Romantic Relationships in the Workplace

Often, claims of sexual harassment arise from a relationship that at one time was consensual. Other times, only one participant views the relationship as consensual. Prohibiting any kind of romantic relationship between a boss and his or her subordinate is a wise policy. There is almost never a good outcome to a romantic relationship between direct reports. With respect to peer romantic relationships or relationships between two people who do not have a reporting relationship with one another, the best practice is to require disclosure or the relationship and an acknowledgment of the consensual nature of the relationship.

5.) If a Concern About Sexual Harassment is Raised, Consider Bringing in an Outside Neutral Investigator

Human resources professionals are rarely trained and equipped to conduct an appropriate investigation into allegations of sexual harassment. Moreover, there is an inherent conflict, often, for the HR manager whose role is in part to protect the company. The higher the accused is in the organization, the more difficult it may be to render a truly objective determination as to whether anything improper has occurred.

If there is one take away for businesses of the #MeToo movement, it’s that business, as usual, will no longer cut it. Smart employers will take appropriate measures in reaction to this growing awareness around the issue of sexual harassment.

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