In determining whether quid pro quo harassment occurred, the court may use either an objective or a subjective test.
- The objective test asks whether a reasonable person in the plaintiff’s position would have believed that she/he was the subject of quid pro quo sexual harassment. For example, if the plaintiff is a woman, the test relies on a reasonable woman standard (see Ellison v Brady (9th Cir 1991) 924 F2d 872, 878). If applicable, the plaintiff’s other traits, such as, race, age, physical or mental disability, and sexual orientation, are also considered.
- The subjective test asks whether the alleged harasser actually intended to subject the plaintiff to quid pro quo harassment, considering plaintiff’s fundamental characteristics, and individual traits known to the accused that make the plaintiff particularly vulnerable to quid pro quo sexual harassment. Also considered are characteristics of or information about the accused that are known to the plaintiff. A defendant may be liable under the subjective test if he or she intentionally took advantage of some particular fear or weakness of the plaintiff.
It is essential to a plaintiff’s claim of quid pro quo harassment that the sexual conduct be unwelcome. Unwelcome conduct is conduct that the employee did not solicit or incite and that the employee regarded as undesirable or offensive. Conduct may be unwelcome even if plaintiff’s sexual compliance was voluntary, as long as the plaintiff’s conduct indicated that the sexual advances were unwelcome. See, Catchpole v Brannon (1995) 36 CA4th 237, 260.