concurring.
I join Judge Flaum’s thoughtful opinion— except for reservations in two areas. First, with regard to quid pro quo harassment, I do not think an employer should be held strictly liable for mere threats made by a supervisory employee. I agree that our focus should be on deterring sexual harassment, but I believe a negligence standard will adequately do the job. A negligence standard will serve to deter quid pro quo threats because employers will rationally seek to avoid liability 1) by establishing policies and procedures to circumscribe improper conduct by supervisors, and 2) by imposing appropriate sanctions against errant supervisors once notified by an employee that a supervisor has made a quid pro quo threat. Beyond that, there is not much an employer realistically can do to put a stop to quid pro quo threats that do not result in any adverse job consequence. Imposing strict liability for such threats would therefore yield little (if any) greater deterrence and generate significantly greater litigation costs than a negligence standard. Moreover, quid pro quo threats may be ambiguous, and if such threats make an employer strictly hable, plaintiffs will attempt to turn all instances of supervisor sexual harassment into “implied threats” in order to take advantage of strict liability’s easier burden of proof.
On the other hand, I cannot agree with Chief Judge Posner’s position that in her threat-only situation (i.e., without an adverse job consequence) Jansen does not have a viable quid pro quo claim. Although strict liability is inappropriate for quid pro quo threats, Jansen should still be able to win on her quid pro quo theory if she can prove her employer’s negligence in failing to obviate quid pro quo threats. Quid pro quo claims involving only threats deserve scrutiny for employer negligence because of the qualitatively more oppressive nature of quid pro quo harassment. Perhaps the facts here will *506demonstrate that the employer was not negligent, but Jansen’s quid pro quo claim should be remanded along with her hostile environment claim so the district court can make the negligence determinations. Admittedly, in this and many cases involving mere threats, adding a quid pro quo claim to a hostile environment claim may not make much practical difference because the supervisor’s threat will already be relevant to the hostile environment negligence analysis. In some cases, however, the quid pro quo claim will stand alone, and negligent employers should be liable for such quid pro quo threats.
My second reservation regarding Judge Flaum’s opinion concerns his treatment of hostile environment harassment. I cannot agree with Judge Flaum’s language suggesting that employers are under a “heightened duty of care” for instances of supervisor harassment. A negligence standard always entails a fact-specific inquiry regarding what care the parties reasonably should have taken. The training, authority, and control given supervisors by an employer will therefore always enter the negligence equation. Calling this a “heightened duty of care” may suggest to some that employers should be presumed liable for supervisor hostile environment harassment. I cannot endorse any such presumptions that take this type of ease outside the normal rules of negligence and further complicate this increasingly difficult issue.