10th Circuit Holds That Quid Pro Quo Sexual Harassment Claim Was Exhausted in EEOC Filing

A recent Tenth Circuit decision, Jones v. Needham Trucking LLC et al, 16-6156 (10th Cir. May 12, 2017), illustrates the close relationship between the court-recognized “hostile work environment” and “quid pro quo” forms of sexual harassment.

The district court granted defendants’ partial motion to dismiss, holding that plaintiff failed to exhaust his administrative remedies for his quid pro quo sexual harassment claim.

The Tenth Circuit disagreed, notingg the similarity and potential overlap between the “quid pro quo” and “hostile work environment” labels:

Needham Trucking argues that the facts alleged were insufficient to put it on notice of the quid pro quo harassment claim made in Mr. Jones’s amended complaint. Aplee. Br. at 11. It takes issue with the EEOC’s argument that the facts alleged were sufficient to exhaust both a quid pro quo and a hostile work environment claim. We are not persuaded. Needham’s argument relies on a complete bifurcation between the two forms of sexual harassment, see id. at 8-9, but the Supreme Court has cautioned that they are not wholly distinct claims. See Ellerth, 524 U.S. at 754. Rather, they are shorthand descriptors to delineate different ways in which sexual harassment can occur. In the first, the tangible employment action that results from a refusal to submit to a supervisor’s demands “itself constitutes a change in the terms and conditions of employment that is actionable under Title VII.” Id. In the second, it is the “severe or pervasive” conduct that effectively alters the conditions of employment so as to violate Title VII. See id.; Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052, 1058 (10th Cir. 2009). Both factual scenarios lead to the same place: sexual harassment that violates Title VII’s proscription against sex discrimination in the workplace. See Gregory v. Daly, 243 F.3d 687, 698-99 (2d Cir. 2001). Though the descriptors matter a great deal insofar as they reveal what elements are needed to prove the specific claim of sexual harassment, see Ellerth, 524 U.S. at 752-54, they are not so unrelated that the facts of the two scenarios could not overlap, or that an investigation resulting from facts specific to one category could not also fall within the scope of an investigation of the other.

Despite Needham’s implicit argument to the contrary, we do not think this understanding is new for this circuit. Needham emphasizes our past cases in which we have continued to use the words “quid pro quo” as evidence that we also continue to recognize “two distinct types of sexual harassment claims.” Aplee. Br. at 8-9. The implication is that perhaps things would be different if the case came about in another circuit that has retired that formulation. Cf., e.g., Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1245 n.4 (11th Cir. 2004) (using term “tangible employment action” instead of “quid pro quo” to describe “harassment that culminates in a discharge, demotion, or undesirable reassignment”). But as we have explained before, though the labels might differ, the underlying meaning does not. Pinkerton, 563 F.3d at 1059 n.4 (“[W]e use the `quid pro quo’ terminology only insofar as it might be useful to show that the harassment culminated in a tangible employment action.” (citing Ellerth, 524 U.S. at 753-54)); see also Gregory, 243 F.3d at 699 (continuing to use term “quid pro quo,” emphasizing that “[w]hat matters . . . is simply whether an employment action was based on plaintiff’s sex,” and refusing “to create a separate doctrinal category for employers who make [employees’] workplace success contingent on submission to a supervisor’s sexual demands”).

A charge need only “describe generally” the alleged discrimination, 29 C.F.R. ยง 1601.12(b), in order to “give notice of an alleged violation to the charged party,” Woodman v. Runyon, 132 F.3d 1330, 1342 (10th Cir. 1997). Mr. Jones’s form has the boxes checked for his allegations of sex-based discrimination and retaliation, and it recounts that he was “subjected to sexual remarks,” that “Julie Needham terminated [his] employment,” and that no reason was given for the termination. 1 Aplt. App. 41. We think this was sufficient to alert Needham to the sexual harassment allegations and to trigger an investigation that would look into what the sexual remarks were, why Mr. Jones was fired, and whether the two events were connected.

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