Sexual Discrimination: Quid Pro Quo No No
Superior Court of New Jersey Appellate Division: J.T.’s Tire Service v. United Rentals
There are basically two forms of sexual harassment: The first is quid pro quo sexual harassment, which “occurs when an employer attempts to make an employee’s submission of sexual demands a condition of his or her employment.” The second is hostile work environment sexual harassment, which occurs "when an employer or fellow employees harass an employee because of his or her sex to the point at which the working environment becomes hostile.”
Simply put, the latter form of harassment generally occurs when a woman works among Neanderthal men who have not learned that it is no longer acceptable in the work place to comment about anatomy, grab or grope said anatomical parts or generally act like we still live in the stone age. It’s akin to a mob mentality on a smaller scale and it brings out the worst in men. Just ask Isiah Thomas of the Knicks and Madison Square Garden Chairman James Dolan.
Quid pro quo sexual harassment is of a different nature. It requires no mob, no assists, just a willingness to abuse power or position for sex. It’s not just the lowest form of harassment, it’s the low-life form of harassment. But can it happen when it isn’t the boss hitting on an employee? What about in the market place, when the representative of one business demands sexual favors from the representative of another to close the deal or to maintain their commercial intercourse?
United is a national equipment rental company. Its Piscataway branch manager was Harold Hinkes. Eileen Totorello is the sole shareholder of J.T. Tire Service, a company that was selling tires to United since 1998. In 2005 Hinkes “began pressuring Totorello to have a sexual relationship with him.” She refused. United Piscataway then stopped buying her tires.
Totorello “managed to get the work back” (one wonders what was said), but Hinkes continued to make threats to withhold business if theirs remained a sex-free relationship. Apparently intent on winning, or at least commandeering sexual favors from Ms. Totorello, he used his tired old tire line to make his point, and added a little kissing and groping in case he had been too subtle. When she refused even these creative advances, Hinkes told her she made a “very poor business decision.” Tire purchases then went permanently flat when United stopped buying J.T.’s tires, which by then amounted to sales of $29,000 per month.
J.T. and Ms. Totorello sued. The lower court said there was no case (all’s fair in love and war, and apparently in business), and that this was not the type of harassment contemplated by the Jersey discrimination statute. The Appellate Division disagreed, finding that “The LAD prohibits discriminatory refusals to do business on the basis of sex, by making it unlawful: For any person to refuse to buy from…contract with…or otherwise do business with any other person on the bases of …sex.”
While defendant conceded that the statute prohibited sexual harassment, it argued that it did not prohibit sexual discrimination, and that the former was prohibited only in employment, and either way, this was not the kind of discrimination the LAD contemplated. While United get’s an “A” for chutzpah, it got nowhere with the court, which ruled:
Although the LAD does not specifically mention sexual harassment as a prohibited form of discrimination, it is well-established that ‘[s]exual harassment is a form of sex discrimination that violates both Title VII and the LAD.’
It went on to say the obvious, which unfortunately for alleged low-lifes and Neanderthals, often needs to be said, to wit, “Where, as here, the harassment consists of sexual overtures and unwelcome touching or groping, it is presumed that the conduct was committed because of the victim’s sex.” And since touching and groping made the question easier for the court to resolve, the refusal to buy tires under the above quoted LAD meant that United’s actions through Hinkes was also discriminatory due to her sex. To rule otherwise, to let such behavior continue unfettered, “would stand as a barrier to women’s ability to do business on an equal footing with men.”
It was Lord Acton who said “power corrupts and absolute power corrupts absolutely.” But it’s all relative. Even a little power, like a little knowledge, is a dangerous thing in the wrong hands.
United ended up with a blow out in court for letting Hinkes drive a hard bargain. Maybe now it will remember one of the fundamental reasons to conduct business at arm’s length—it keeps negotiators out of groping and grabbing range.
