Quid pro quo

Quid pro quo ("something for something" in Latin)^[1] is a Latin phrase used in English to mean an exchange of goods or services, in which one transfer is contingent upon the other; "a favour for a favour". Phrases with similar meanings include: "give and take", "tit for tat", and "you scratch my back, and I'll scratch yours" and "one hand washes the other".

In common law

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 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 often 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, for example.^[2][3]

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.

In United States labor law, workplace sexual harassment can take two forms; either "Quid pro quo" harassment or hostile work environment harassment.^[4] "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.^[5] The supervising harasser must have "immediate (or successively higher) authority over the employee.”^[6] The power dynamic between a supervisor and subordinate/job candidate is such that a supervisor could use his/her 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.^[7] Under Agency law, the employer is held responsible for the actions of the supervisor because he/she was 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:

• plaintiff must prove that he/she was 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.^[8]

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.

Explaining the Three Factors:

• 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.^[9].
• 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 he/she will go out on a date with him/her, or tells an employee he/she will be fired if she doesn't sleep with him/her.^[10]
• 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.^[11] 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."^[12]

Difference Between hostile work environment claims and Quid pro quo harassment claims: Although these terms are popular among lawyers and scholars, neither hostile work environment nor "Quid pro quo" are found in Title VII of the Human Rights 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.^[13] Therefore,it is important to remember that 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.

Origins

The Latin phrase quid pro quo originally implied that something had been substituted, as in this instead of that. Early usage by English speakers followed the original Latin meaning, with occurrences in the 1530s where the term referred to either intentionally or unintentionally substituting one medicine from another. This may also have extended to a fraudulent substitution of useful medicines for an ingenuine article. By the end of the same century, quid pro quo evolved into a more current use to describe equivalent exchanges.^[14]

In 1654, the expression quid pro quo was used to generally refer to something done for personal gain or with the expectation of reciprocity in the text The Reign of King Charles: An History Disposed into Annalls, with a somewhat positive connotation. It refers to the convenant with Christ as something "that prove not a nudum pactum, a naked contract, without quid pro quo." Believers in Christ have to do their part in return, namely "foresake the devil and all his works". ^[15]

Quid pro quo would go on to be used, by English speakers in legal and diplomatic contexts, as an exchange of equally valued goods or services and continues to be today.^[16]

The Latin phrase corresponding to the usage of quid pro quo in English is do ut des (Latin for "I give, so that you may give"). ^[17] Other languages continue to use do ut des for this purpose.

In literature

Multiple definitions and examples of quid pro quo have been provided over time through many famous and infamous works of literature.

Influence AB. A pun on the Latin expression quid pro quo, meaning an equal exchange (this for that), and the British word quid, meaning a pound sterling.

— Ambrose Bierce, The Unabridged Devil's Dictionary^[18]

Elsewhere (since Bierce wrote different definitions depending on which newspaper he was working for) he defined it:

Influence, n. In politics, a visionary quo given in exchange for a substantial quid.

— Ambrose Bierce, The Devil's Dictionary^[19]

In his classic self-help book Think and Grow Rich, Napoleon Hill (disciple of Andrew Carnegie) calls quid pro quo "a universal law of the marketplace, which Nature Herself will reckon if it is bent/broken long enough!"

The Urban Dictionary (an online dictionary containing words used in today's society, primarily by Generation Z) defines "quid pro quo" as "Latin – this for that. I want something. You want something. You give me what I want, I'll give you what you want."

Max Muller's Manager's Guide to HR: Hiring, Firing, Performance Evaluations, Documentation, Benefits & Everything Else You Need to Know has a whole chapter designated to hot topic issues such as sexual harassment and violence in the workplace. Within this chapter, Muller gives the Latin translation of "quid pro quo" (this for that) and provides various techniques to combat it.

Other meanings

Quid pro quo may sometimes be used to define a misunderstanding or blunder made by the substituting of one thing for another, particularly in the context of the transcribing of a text.^[20] In this alternate context, the phrase qui pro quo is more faithful to the original Latin meaning (see below). In proofreading, an error made by the proofer to indicate to use the original is usually marked with the Latin word stet ("let it stand"), not with "QPQ".

In the Romance languages, such as Italian, Portuguese, Spanish and French, the phrase quid pro quo is used with the original Latin meaning, referring to a misunderstanding or a mistake ("to take one thing for another").^[21][22] In those languages, the Latin phrase corresponding to the English usage of quid pro quo is do ut des ("I give so that you will give").

The Vocabolario Treccani (an authoritative dictionary published by the Encyclopaedia Treccani), under the entry "qui pro quo", states that the latter expression probably derives from the Latin used in late medieval pharmaceutical compilations.^[21] This can be clearly seen from the work appearing precisely under this title, "Tractatus quid pro quo," (Treatise on what substitutes for what) in the medical collection headed up by Mesue cum expositione Mondini super Canones universales... (Venice: per Joannem & Gregorium de gregorijs fratres, 1497), folios 334r-335r. Some examples of what could be used in place of what in this list are: "Pro uva passa dactili" (in place of raisins, [use] dates); "Pro mirto sumac" (in place of myrtle, [use] sumac); "Pro fenugreco semen lini" (in place of fenugreek, [use] flaxseed), etc. This list was an essential resource in the medieval apothecary, especially for occasions when certain essential medicinal substances were not available.

See also

Look up quid pro quo in Wiktionary, the free dictionary.

• Barter
• Eye for an eye
• List of Latin phrases
• Offset agreement
• Pay to play
• Reciprocity
• Tit for tat

Notes