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"Quid pro quo harassment" occurs when "submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual," 29 C. "Hostile environment" harassment may acquire characteristics of "quid pro quo" harassment if the offending supervisor abuses his authority over employment decisions to force the victim to endure or participate in the sexual conduct. While declining to issue a "definitive rule on employer liability," the Court did reject both the court of appeals' rule of automatic liability for the actions of supervisors and the employer's position that notice is always required. The Commission recognizes that sexual conduct may be private and unacknowledged, with no eyewitnesses.
established that both types of sexual harassment are actionable under section 703 of Title VII of the Civil Rights Act of 1964, 42 U. Similarly, a supervisor who makes sexual advances toward a subordinate employee may communicate an implicit threat to adversely affect her job status if she does not comply. c) 's position that agency principles should be used for guidance. In any case, however, her refusal to submit to the sexual conduct cannot be the basis for denying her an employment benefit or opportunity; that would constituted a "quid pro quo" violation.
If the investigation exhausts all possibilities for obtaining corroborative evidence, but finds none, the Commission may make a cause finding based solely on a reasoned decision to credit the charging party's testimony.
The investigation should determine the validity of the employer's reasons for the charging party's termination.
For example, three co-workers state that looked distraught on several occasions after leaving the supervisor's office, and that she informed them on those occasions that he had sexually propositioned and touched her.
In addition, the evidence shows that had complained to the general manager of the office about the incidents soon after they occurred.
She also states that she initially believed she could resolve the situation herself, but as the harassment became more frequent and severe, she said she realized that intervention by , the Supreme Court made clear that voluntary submission to sexual conduct will not necessarily defeat a claim of sexual harassment. In some cases the courts and the Commission have considered whether the complainant welcomed the sexual conduct by acting in a sexually aggressive manner, using sexually-oriented language, or soliciting the sexual conduct. Emphasizing that the proper inquiry is "whether plaintiff welcomed the particular conduct in question from the alleged harasser," the court of appeals held that "Plaintiff's use of foul language or sexual innuendo in a consensual setting does not waive 'her legal protections against unwelcome harassment.'" 830 F.2d at 557 (quoting Cir. Thus, evidence concerning a charging party's general character and past behavior toward others has limited, if any, probative value and does not substitute for a careful examination of her behavior toward the alleged harasser.
If the victim failed to complain or delayed in complaining, the investigation must ascertain why. § 1604.11(b).) alleges that her supervisor subjected her to unwelcome sexual advances that created a hostile work environment. Conversely, occasional use of sexually explicit language does not necessarily negate a claim that sexual conduct was unwelcome.
Indeed, the Commission recognizes that victims may fear repercussions from complaining about the harassment and that such fear may explain a delay in opposing the conduct.
As with any other charge of discrimination, a victim's account must be sufficiently detailed and internally consistent so as to be plausible, and lack of corroborative evidence where such evidence logically should exist would undermine the allegation.
Of course, the Commission recognizes that a charging party may not be able to identify witnesses to the alleged conduct itself.