Quid pro quo

In common law, quid pro quo indicates that an item or a service has been traded in return for something of value, usually when the propriety or equity of the transaction is in question. A contract must involve consideration: that is, the exchange of something of value for something else of value. For example, when buying an item of clothing or a gallon of milk, a pre-determined amount of money is exchanged for the product the customer is purchasing; therefore, they have received something but have given up something of equal value in return.

In the United Kingdom, the one-sidedness of a contract is covered by the Unfair Contract Terms Act 1977 and various revisions and amendments to it; a clause can be held void or the entire contract void if it is deemed unfair (that is to say, one-sided and not a quid pro quo); however, this is a civil law and not a common law matter.

Political donors must be resident in the UK. There are fixed limits to how much they may donate (£5000 in any single donation), and it must be recorded in the House of Commons Register of Members' Interests or at the House of Commons Library; the quid pro quo is strictly not allowed, that a donor can by his donation have some personal gain. This is overseen by the Parliamentary Commissioner for Standards. There are also prohibitions on donations being given in the six weeks before the election for which it is being campaigned. It is also illegal for donors to support party political broadcasts, which are tightly regulated, free to air, and scheduled and allotted to the various parties according to a formula agreed by Parliament and enacted with the Communications Act 2003.

In the United States, if the exchange appears excessively one sided, courts in some jurisdictions may question whether a quid pro quo did actually exist and the contract may be held void. In cases of "quid pro quo" business contracts, the term takes on a negative connotation because major corporations may cross ethical boundaries in order to enter into these very valuable, mutually beneficial, agreements with other major big businesses. In these deals, large sums of money are often at play and can consequently lead to promises of exclusive partnerships indefinitely or promises of distortion of economic reports.[9][10]

In the U.S., lobbyists are legally entitled to support candidates that hold positions with which the donors agree, or which will benefit the donors. Such conduct becomes bribery only when there is an identifiable exchange between the contribution and official acts, previous or subsequent, and the term quid pro quo denotes such an exchange.[11]

In United States labor law, workplace sexual harassment can take two forms; either "quid pro quo" harassment or hostile work environment harassment.[12] "Quid pro quo" harassment takes place when a supervisor requires sex, sexual favors, or sexual contact from an employee/job candidate as a condition of their employment. Only supervisors who have the authority to make tangible employment actions (i.e. hire, fire, promote, etc.), can commit "quid pro quo" harassment.[13] The supervising harasser must have "immediate (or successively higher) authority over the employee."[14] The power dynamic between a supervisor and subordinate/job candidate is such that a supervisor could use their position of authority to extract sexual relations based on the subordinate/job candidate's need for employment. Co-workers and non-decision making supervisors cannot engage in "quid pro quo" harassment with other employees, but an employer could potentially be liable for the behavior of these employees under a hostile work environment claim. The harassing employee's status as a supervisor is significant because if the individual is found to be a supervisor then the employing company can be held vicariously liable for the actions of that supervisor.[15] Under Agency law, the employer is held responsible for the actions of the supervisor because they were in a position of power within the company at the time of the harassment.

To establish a prima facie case of "quid pro quo" harassment, the plaintiff must prove that they were subjected to "unwelcome sexual conduct", that submission to such conduct was explicitly or implicitly a term of their employment, and submission to or rejection of this conduct was used as a basis for an employment decision,[16] as follows:

• Unwelcome Sexual Conduct: a court will look at the employee's conduct to determine whether the supervisor's sexual advances were unwelcome. In Meritor Savings Bank v. Vinson, the Court opined that voluntary sex between an employee and supervisor does not establish proof that a supervisor's sexual advances were welcome. The Court also stated that evidence of the subordinate employee's provocative dress and publicly expressed sexual fantasies can be introduced as evidence if relevant.[17]
• Term of Employment: a term or condition of employment means that the subordinate/job candidate must acquiesce to the sexual advances of the supervisor in order to maintain/be hired for the job. In essence, the sexual harassment becomes a part of their job. For example, a supervisor promises an employee a raise if they go out on a date with the supervisor, or tells an employee they will be fired if the employee doesn't sleep with them.[18]
• Tangible Employment Action: a tangible employment action must take place as a result of the employee's submission or refusal of supervisor's advances. In Burlington Industries, Inc. v. Ellerth, the Court stated that tangible employment action amounted to "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." It is important to note that only supervisors can make tangible employment actions, since they have the company's authority to do so. The Court also held that unfulfilled threats by a supervisor of an adverse employment decision are not sufficient to establish a "Quid pro quo," but were relevant for the purposes of a hostile work environment claim.[19] Additionally, the Supreme Court has held that constructive dismissal can count as a tangible employment action (thus allowing a quid pro quo sexual harassment claim) if the actions taken by a supervisor created a situation where a "reasonable person ... would have felt compelled to resign."[20]

Once the plaintiff has established these three factors, the employer can not assert an affirmative defense (such as the employer had a sexual harassment policy in place to prevent and properly respond to issues of sexual harassment), but can only dispute whether the unwelcome conduct did not in fact take place, the employee was not a supervisor, and that there was no tangible employment action involved.

Although these terms are popular among lawyers and scholars, neither "hostile work environment" nor "quid pro quo" are found in Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating on the basis of race, sex, color, national origin, and religion. The Supreme Court noted in Burlington Industries, Inc. v. Ellerth that these terms are useful in differentiating between cases where threats of harassment are "carried out and those where they are not or absent altogether," but otherwise these terms serve a limited purpose.[21] Therefore, sexual harassment can take place by a supervisor, and an employer can be potentially liable, even if that supervisor's behavior does not fall within the criteria of a "Quid pro quo" harassment claim.

Quid pro quo was frequently mentioned during the impeachment inquiry into U.S. president Donald Trump, in reference to the charge that his request for an investigation of Hunter Biden was a precondition for the delivery of congressionally authorized military aid during a call with Ukrainian president Volodymyr Zelenskyy.[22]