Strange Career of Quid Pro Quo Sexual Harassment, The
![handle is hein.journals/hjlpp21 and id is 319 raw text is: ARTICLES
THE STRANGE CAREER OF QUID PRO QUO
SEXUAL HARASSMENT
EUGENE SCALIA*
I. INTRODUCTION ...................................................... 308
II. QUID PRO QUO AS ADVERSEJOB ACTION ................. 309
III. QULD PRO QUO AS HARASSMENT .............................. 314
IV. QULDWITHOUT Quo-No HARASSMENT IN
CASE OF BREACH OF CONTRACT? ........................... 17
V. No HARM IN ASKING AND THE STANDARD OF
EMPLOYER LIABILITY .........................319
VI. CONCLUSION .......................................................... 324
Title VII issues a simple command-don't treat employees
differently because of race or sex-that courts have obscured
with an array of terms, tests, and categories.' The United States
Supreme Court confronts an example this spring: quid pro quo
sexual harassment, which it is asked to define in Burlington
Industries, Inc. v. Ellerth.
* Associate, Gibson Dunn & Crutcher LLP, Washington, D.C. I am grateful to David
Cathcart, Evan Grayer, William Kilberg, Mark Snyderman, and Stephen Tallent for their
comments on earlier drafts. All errors are mine.
1. See Stephen E. Tallent and Kathleen G. Vagt, The Mix-Up Over Mixed Motives, in
EQUAL OPPORTUNnl LAW30YEARS LATER E-1 (1995). The Supreme Court's recipes for
discrimination cases have brought the purpose of the 1964 [Civil Rights] Act a long way.
At this point, however, they do little more than confuse and provide fodder for
commentators' gratuitous manipulation. Id. at E-4. See also, e.g., O'Connor v.
Consolidated Coin Catering Corp., 56 F.3d 542 (4th Cir. 1995), rev'd, 517 U.S. 308
(1996) (holding that a 56-year-old could not state a primafade case of age discrimination
under the test of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), when his
replacement was 16 years younger, because both men were within the protected class of
the age discrimination statute).
2. No. 97-569. Burlington Industries is one of three cases before the Court that should
make the 1997 Term the defining year in the law of sexual harassment. In Faragherv. City
of Boca Raton, No. 97-282, the Court addresses the standard of employer liability for
.environmental sexual harassment, an issue that is regarded as closely tied to quid pro
quo for reasons explained in Part V, infra. Earlier this Term, in Oncale v. Sundowner
Offshore Services, Inc., 118 S. Ct. 998 (1998), the Court held that harassment may be](ViewImageLocal?handle=hein.journals/hjlpp21&div=39&collection=&method=preview&ext=.png&size=3)
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