(Un)welcome Conduct and the Sexually Hostile Environment
Henry Lawrence Chambers
affiliation not provided to SSRN
Alabama Law Review, Vol. 53, p. 733, 2002
Courts, including the Supreme Court, have consistently noted that sexual harassment must be unwelcome to be actionable. The unwelcomeness requirement can be justified as serving two functions: guaranteeing that sexual harassment harm has occurred and providing notice to the putative harasser that continuing the harassing conduct may cause harm. When sexual harassment was thought to consist largely or nearly exclusively of face-to-face, conduct related to sexual activity, e.g., sexual advances, requests for sexual favors and other conduct of a sexual nature, the unwelcomeness requirement may have been thought defensible, if not reasonable. However, as courts expand the conduct that can support a sexual harassment claim to include all styles of sex-based harassment, including conduct that need not necessarily be directed at the plaintiff, the lack of unwelcomeness does not guarantee a lack of harm. Other changes in sexual harassment law eliminate the need for unwelcomeness' notice-serving function. Because the theoretical justifications for unwelcomeness have eroded and the unwelcomeness requirement may lead to results inconsistent with Title VII's broad prohibition on discrimination, the time has come (again) to jettison the requirement, though welcomeness may remain an evidentiary issue related to how severely a plaintiff's terms or conditions of employment were affected and how much damage a plaintiff suffered.
Accepted Paper Series
Date posted: October 30, 2002
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