In recent years the concept of “quid pro quo sexual harassment” has become central to explanations of sexual harassment and violence against women. In particular, the use of the term by the ILO – as well as Global Unions – establishes “quid pro quo sexual harassment” as integral to our understanding of gender-based violence in the world of work.
This is also the case when it comes to explaining ILO Convention No.190 (Convention concerning the elimination of violence and harassment in the world of work), although the convention makes no reference to this term. The ILO’s Guide to C190 explains that there are two elements of sexual harassment: quid pro quo and a hostile work environment.
This definition is based on the General Observation of the ILO Committee of Experts on the Application of Conventions (CEACR) in 2002 concerning Convention No.111 Discrimination (Employment and Occupation). The origin of “quid pro quo sexual harassment” in US law was also in relation to gender-based discrimination and we will return to this point later.
The widespread, uncritical use of “quid pro quo sexual harassment” raises questions about whether it accurately captures what women workers face and how it frames the actions necessary to eliminate sexual harassment and violence against women.
The reality is that women with insecure employment contracts are more vulnerable to sexual harassment and abuse where men decide whether they hired, their contracts are renewed, how much work they receive, what their job role is, their performance appraisal, and ultimately how much they earn and for how long.
In a recent experience in a leading global company operating in Southeast Asia, the HR director used his sole and exclusive authority to decide on recruitment, renewal of contracts and permanent appointments of women. He subsequently sexually harassed and physically abused as many as 35 women over a period of five years. In other cases – in a transnational beverage company in the Philippines and more recently a transnational snack food company in Pakistan – male labour contractors and their male supervisors forced woman contract workers to have sex in return for employment, and once employed were compelled to have sex for extra days of work.
To understand how and why this happens (and to prevent it from happening) there needs to be a clearer understanding of why women in precarious employment (insecure jobs) face a much greater risk of sexual harassment and abuse. Men with authority (or who claim to have authority) exploit both the economic vulnerability of women and their social vulnerability (in terms of employment status).
Quid pro quo (“this for that”) refers to an exchange in return for something and is most commonly understood as an exchange of favours. The incredible imbalance in power (the unchecked authority of a man or men) and women workers’ vulnerability (economic and social) underpins sexual harassment and violence. It is not an exchange. It is not a favour. Moreover, quid pro quo assumes an implicit agreement which in turn implies consent. This is completely unacceptable given the realities we are dealing with.
A woman contract workers begs for 12 additional days work so she can be entitled to mandatory benefits. The contractor supervisor with the help of a union leader says come with me and we will discuss it. They force her to have sex with them then they dump her near her home. She reports for work the next day. The management of the transnational company are dismissive of her courageous efforts to file rape charges because they believe she intentionally sought out this opportunity and an exchange happened. The only act of non-compliance (not crime) is that the contractor supervisor and union leader abused their authority and should not be handing out favours. Greater transparency and a refresher training on sexual harassment is all that is needed.
This downplaying of the exploitation of the woman contract workers’ vulnerability and rape is helped by the ILO’s use of “quid pro quo sexual harassment”. According to this concept, the violation that occurred was sexual harassment due to gender-based discrimination. Apparently these men discriminated against the contract woman worker on the basis that she is a woman. However, the concept has undergone another transformation (it is no longer about discrimination against women) since the wider scope of C190 includes both men and women:
What we lose is any sense of the economic desperation stemming from a woman’s job insecurity or precarious employment, and the deliberate exploitation of her vulnerability by a man or men who can decide whether that insecurity increases or decreases. This is coercion.
The predictability of the consequences of not acquiescing to this coercion is a source of constant anxiety, compounded by the anxiety and insecurity stemming from economic, social and in many cases physical vulnerability. The anxiety experienced by women in insecure jobs increases the power of the man or men wielding authority and becomes integral to the effectiveness of this coercion. Yet the economic vulnerability of women means they cannot remove themselves from this coercion. It is a vicious cycle – not an exchange of favours.
In the case of the HR Director of a transnational company who exploited 35 women, he took young women (under his authority and on fixed term contracts that can only be renewed by him) to his dormitory and sexually molested and in some cases sexually assaulted them. How is this coercion quid pro quo? We need to capture this coercion in our understanding of sexual harassment. Not suggest it is an exchange of favours.
The most disturbing implication of the term “quid pro quo sexual harassment” is the implicit notion of consent. The exchange (“this for that”) implies she was aware of what she was doing and by default is held responsible for the consequences. A commonly held view among women in authority (managers and supervisors) and even women co-workers is that she knew what she was getting into. This has serious implications not only for the vulnerability of women (isolation in an environment ranging from lack of support to derision and hostility) but to the perceived solutions. If the “quid pro quo sexual harassment” approach perpetuates the myth of consent then putting more women in positions of authority may not reduce the vulnerability of women. It also does nothing to reduce the economic vulnerability of women due to precarious employment arrangements (insecure jobs).
The first use of the term “quid pro quo sexual harassment” was in a US legal case filed in 1976 by Diane Williams who was terminated from her job at the US Department of Justice after filing a complaint against her supervisor. The court ruled that Williams was subjected to “quid pro quo sexual harassment”. But what made the actions of her employer illegal was that it was based on sex discrimination: only women were required to submit to sexual advances, creating an artificial barrier to employment for one gender but not the other. It was determined that this discrimination violated the 1964 Civil Rights Act.
This set a precedent for another case that was lost in 1974, and won on appeal in 1977. Paulette Barnes was a payroll clerk who worked for the US Environmental Protection Agency. She lost her job after refusing to have sex with a male supervisor. When Barnes won her appeal in 1977, the court ruled that it is sex discrimination if a woman suffers tangible employment losses (e.g. losing her job) for refusing to submit to requests for sexual favors. Again, this discrimination violated the 1964 Civil Rights Act.
When women like Williams and Barnes lose their jobs for refusing to have sex with their supervisors, they reject the quid pro quo and it becomes a discrimination issue because it would not have happened if they were men. The logical consequence of this thinking is that women can refuse and be penalized or accept and be sexually exploited. Both are sexual harassment but there is an implied sense of consent – an exchange with expected outcomes. This is why men prefer the term “quid pro quo sexual harassment”. It is wrong because it is an abuse of authority, but it is carried out based on implicit consent where the woman expects to get the job, pass probation, have her contract renewed or get a promotion. The violence and coercion underpinning all of these situations in which women’s economic and social vulnerability is exploited is obscured by this notion of exchange – a transaction.
What is completely lost in the 47 years since Williams v. Saxbe (1976) and Barnes vs. Costle (1977), is that the only way to win the legal case at that time was to prove it violated the 1964 Civil Rights Act. And the only way to do that was to prove it constituted sex discrimination (gender-based discrimination). Instead of developing stronger laws and regulations to criminalize men’s abuse of power over women workers and for sexual harassment to be the crime, we now see a compromised legal argument from five decades ago being used at global level.
What is also lost is that both Diane Williams and Paulette Barnes were African-American women. Nowhere in this notion of “quid pro quo sexual harassment” is there any possibility of addressing the fact that systemic, institutionalized racism underpinned their vulnerability and the coercive power of men.
Dr Muhammad Hidayat Greenfield, IUF Asia/Pacific Regional Secretary