You would think that in the age of the internet people would act with more discretion.  You would also think that someone tasked with running a franchise restaurant would know better than to proposition potential employees during the application process.  Unfortunately, according to a recent article in the Albany Times Union, neither is true.

The article discusses a recent lawsuit filed by the United States Equal Employment Opportunity Commission (“EEOC”), which accuses an Albany based operator of multiple Subway franchises of violating Title VII of the Civil Rights Act when the manager of one of its stores allegedly offered two female applicants jobs in exchange for sex.  The requests, apparently captured via text message, were reported to the owner who promptly fired the manager.

Making a job contingent on sex is illegal

So, to state the obvious, no it is not okay to make a job contingent on sex.  This applies in the context of new hires as well as existing employees.  This is known as quid pro quo sexual harassment, and Title VII of the Civil Rights Act, among other things, makes this illegal.

Quid pro quo harassment issues typically arise in one of three settings.  1) As with the Subway situation, a manager or owner propositions a prospective employee, suggesting that if the employee engages in a relationship the job will be hers; 2) A manager suggests to an existing employee that if she were to engage in a relationship she may be in line for a promotion; or 3) A co-worker engages in a consensual sexual relationship with his supervisor.  When he attempts to break off the relationship she makes it clear in no uncertain terms that if he wants to keep his job he needs to continue the relationship.

In each of these examples the employer (or manager) in a position of authority is attempting to use that authority towards obtaining unwanted physical relations.

To be clear, engaging in and terminating a consensual relationship with a co-worker or supervisor does not give rise to a quid pro quo sexual harassment claim.  Nor does the decision by an employer to terminate an employee with whom he or she was formerly involved.  The key is that the employer must make continued employment contingent on performance of a sexual act.

If you have been terminated after declining to engage in a sexual relationship with a supervisor or co-worker give us a call.  You may have a quid pro quo sexual harassment claim.

Scott M. Peterson is an employment and personal injury attorney.