Harassment Claim May Be Based on Demand for Sexual Favors for a Third Party
The U.S. Court of Appeals for the Fifth Circuit held that a sexual harassment claim may be based on a demand that an employee date a potential client in order to receive a bonus.
Under the quid pro quo theory of sexual harassment, an employer is liable when a manager or supervisor makes sexually-based demands of an employee, and then takes action against the employee based on the employee’s compliance or refusal of the demands. In the case of Davenport v. Edward D. Jones & Co., the supervisor did not make demands for himself but rather for a third party – a client. The court rejected the employer’s argument that a quid pro quo claim must involve a request to engage in sexual acts with the supervisor. Instead, the court found that, because the supervisor conditioned the receipt of a bonus on the subordinate’s dating a client, the supervisor was the harasser, and it did not matter that a third party was the beneficiary of the harassment.
Interestingly, however, in this case, the court went on to find that the employee had failed to establish her claim because she did not offer sufficient evidence that she was actually eligible for a bonus and was denied it based on her refusal to date the client. Nonetheless, in this #MeToo era of heightened sensitivity to sexual harassment, this case warns employers that sexual harassment claims may be considered broadly and involve individuals outside of the company.