Conditioning Return to Work on “Hooking Up” With “De Facto Supervisor” is Plausible Quid Pro Quo Sexual Harassment Theory, Court Holds

In Figueroa v. RSquared NY Inc. (EDNY March 3, 2015), the Eastern District of New York held that plaintiff stated a claim for “quid pro quo” sexual harassment under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law.

In sum, plaintiff alleged that while on a leave of absence from work due to pregnancy and post-partum depression related to a miscarriage, an operations manager (identified as Ain “Doe” in the opinion) told her that she could secure her old position on the condition that plaintiff “hook up” with him. The crux of plaintiff’s claim was that she was unable to return to work because she rejected this sexual advance.

The court summarized the law as follows:

To make out a prima facie case for [a quid pro quo sexual harassment] claim against an employer, an employee must show a tangible employment action, i.e., that an explicit alteration in the terms or conditions of employment resulted from refusal to submit to a supervisor’s sexual advances. A tangible employment action usually constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. … [T]he law of quid pro quo sexual harassment requires that the alleged harasser is the supervisor who affects the conditions of employment. … Indeed, the quid in the claim’s name represents the power or leverage that an employer and/or supervisor holds over his subordinates, which usually does not exist between mere coworkers.

Applying the law, the court held that plaintiff sufficiently alleged a plausible theory of quid pro quo sexual harassment, even though she didn’t use the term “supervisor” in her complaint:

[C]onstruing the complaint liberally as the Court must on a motion to dismiss, the Court finds that the Plaintiff states a plausible theory of quid pro quo sexual harassment against RSquared NY. In particular, although the complaint does not specifically allege that Ain “Doe” was the Plaintiff’s “supervisor,” it can reasonably be inferred based on Ain “Doe” ‘s status as an Operations Manager and cousin of Hirji [defendant’s Owner and CEO] that he enjoyed the power to rehire her. In this regard, at this stage of the litigation, the Plaintiff adequately alleges that Ain “Doe” was her de facto supervisor, albeit without using that term.

The fact that plaintiff’s supervisor told her that she could not return to work before the alleged incident of sexual harassment was not dispositive, since “the relevant ‘tangible employment action’ is, for purposes of the Plaintiff’s quid pro quo sexual harassment claim, Ain[]’s conditioning the Plaintiff’s rehiring on her assent to his sexual demands, not her initial termination.”

Next, the court reiterated that “the lack of right to re-employment by contract or tenure does not preclude an employee from claiming that her constitutional rights have been infringed by an employer’s refusal to rehire” and that “the discrimination laws … apply with equal force to an employer’s decision regarding a current employee who is denied a renewal of an employment contract.”

Finally, the court held that plaintiff stated a claim for individual liability under the New York State Human Rights Law (under an “aiding and abetting” theory) against Ain “Doe”, but not Hirji, the CEO. Hirji, unlike Ain, “had no connection with the underlying alleged sexual harassment as to the rehiring.”

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