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2002(Un)Welcome Conduct and the Hostile Work
Environment
Henry L. Chambers, Jr.
University of Richmond, hchamber@richmond.edu

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Henry L. Chambers, (Un)Welcome Conduct and the Hostile Work Environment, 53 Ala. L. Rev. 733 (2002).

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ALABAMA LAW REVIEW
Volume 53

Spring2002

Number3(UN) WELCOME CONDUCT AND THE SEXUALLYHOSTILE ENVIRONMENTHenry L. Chambers, Jr. •INTRODUCTION

The law requires that actionable sexual harassment be unwelcome.
This requirement rests on the notion that welcome conduct does notcause sexual harassment harm. When sexual harassment was thought toconsist largely of face-to-face sex-based conduct such as sexual advances, the unwelcomeness requirement may have been thought reasonable. However, as courts have broadened the conduct that may support
a sexual harassment claim to include all types of gender-based conduct,
the justification on which the unwelcomeness requirement rests has
faded. Because the application of the unwelcomeness requirement to all
potentially harassing, gender-based conduct can lead to results inconsistent with the broadened vision of Title VII, the requirement should be
Associate Professor of Law, University of Missouri-Columbia School of Law; B.A.,
J.D., University of Virginia. The author wishes to thank the University of Missouri Law School
Foundation for its support throughout the preparation of this Article. In addition, the author
wishes to thank Professors Dwight Aarons, Theresa Beiner, Christopher Guthrie, Sylvia Lazos,
Vicki Schultz, Jean Sternlight, and those who contributed helpful comments during a faculty
colloquium at the University of Missouri School of Law, at the 2001 Midwestern People of Color
Legal Scholarship Conference and at the 2000 Law and Society Association Annual Conference.
The author also wishes to thank research assistants Sheri Chandler, William Fritzlen, Elizabeth
Meyer and Kathryn Pierce for their work. Lastly, the author wishes to thank his wife and the restof his family for their support.

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jettisoned.
Courts, including the Supreme Court, have consistently noted thatsexual harassment must be unwelcome to be actionable. 1 The unwelcomeness requirement incorporates the seemingly sensible notion thatwelcome sexual behavior-conduct that would be sexually harassing
were it not welcome-does not cause the gender-related harm that Title
VII is supposed to remedy (i.e., the discriminatory provision of terms,
conditions or privileges of employment because of sex). When firstrecognized by courts and the Equal Employment Opportunity Commission (EEOC), sexual harassment focused on face-to-face sex-based conduct (e.g., sexual advances, requests for sexual favors and other conduct of a sexual nature). 2 That such conduct was not actionable whenwelcome was a seemingly reasonable concession to the notion that Title
VII does not ban all sex-related activity in the workplace. Simply,
workplace sexual conduct that did not alter or harm terms of employment was acceptable; unwelcome sexual conduct that harmed an employee's terms of employment was banned. 3
Though face-to-face sex-based harassment may still be the most easily recognizable type of sexual harassment, courts have begun to recognize that Title VII covers gender harassment, of which sex-based harassment is a subset. 4 Non-sex-based gender harassment that some courts
until recently may not have considered sexual harassment because it
was not sex-related, now may support a sexual harassment claim when
it results in the alteration or discriminatory provision of an employee's
terms or conditions of employment. 5 Whether such conduct is sex-basedis relevant because sex-based conduct is generally assumed to be undertaken because of the victim's sex (or gender), not because sex-based
conduct constitutes the whole of sexually harassing conduct. 6 As theunwelcomeness requirement rests firmly on the notion that sexuallyharassing conduct is largely sex-based and face-to-face, it may be in1.
See, e.g., Meritor Sav. Bank v. Vinson, 477 U.S. 57, 68-69 (1986); Henson v. City of
Dundee, 682 F.2d 897, 903 (11th Cir. 1982).
2.
Indeed, the EEOC's guidelines regarding sexual harassment only specifically include"sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual
nature" in its definition of sexual harassment. 29 C.F.R. § 1604.ll(a) (2001) (originally codified
in 1980 as 42 U.S.C. 4200e).
3.
See, e.g., Vinson, 477 U.S. at 68-69; Henson, 682 F.2d at 901-05.
4.
Oncale v. Sundowner Offshore Servs., Inc. 523 U.S. 75 (1998).
5.
Oncale, 523 U.S. at 75. Throughout this Article, I use the term "sex-based" to mean
related to sexual activity rather than gender. Where appropriate, I use the term gender-based.
6.
Sex-based conduct is generally presumed to be gender-related. See id. at 80 ("Courts andjuries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made tosomeone of the same sex."). However, this is not always the case. See Henry L. Chambers, Jr.,A Unifying Theory of Sex Discrimination, 34 GA. L. REv. 1591, 1608 n.73 (2000) (noting that
sex-based conduct is not automatically gender-based).

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Unwelcomeness and the Hostile Environment

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compatible with evolving sexual harassment jurisprudence unless it canbe appropriately applied to all potentially harassing gender-based conduct.
As courts refine the theory underlying sexual harassment and sex
discrimination, the unwelcomeness inquiry may become irrelevant todetermining whether gender-based conduct is sexually harassing. In
addition, the one possible remaining purpose that the unwelcomenessrequirement may serve-providing notice to a putative harasser or its
employer-is now served by an affirmative defense applicable to manysexual harassment claims. Consequently, its role should be reexamined.
This Article does that. Part I of the Article describes a hypotheticalsituation that provides a context in which to consider unwelcomeness.
Part II provides a brief overview of the evolving sexual harassment
jurisprudence. Part III examines how the unwelcomeness requirement isapplied to sexual harassment claims. Part IV analyzes the uneasy andincompatible relationship between the unwelcomeness requirement andsexual harassment jurisprudence. Part V resolves the tension between
unwelcomeness and sexual harassment jurisprudence by advocating thatthe unwelcomeness requirement be jettisoned, but that evidence of welcomeness be used in some cases to help determine damages.
I. THE HYPOTHETICAL SITUATION

Amanda Allen is an outstanding staff accountant at Xl'Z Corp.
(Xl'Z). She has worked at Xl'Z for three years, and is friendly, wellliked and well-respected. Amanda has not been up for a promotion in
her tenure at Xl'Z, but has received pay raises and favorable evaluations. Until recently, Amanda never considered leaving Xl'Z.
Xl'Z employs two hundred workers, fifteen of whom are managers.
Though forty percent of Xl'Z's employees are women, only three of its
managers are women. Xl'Z's office atmosphere is libertine. Genderbased joking and sexual banter are legion in the office. Dating and intimate relationships between co-workers occur occasionally, but they
are usually discreet. Because offices and cubicles are treated as semipersonal space, many male employees regularly post sexually suggestive and gender-related bumper stickers, calendars and quotations intheir work spaces.
Most of the male employees seem to enjoy the atmosphere at Xl'Z,
even deeming it fun and progressive in its openness, lack of inhibition,
and apparent dearth of friction. Only a few female employees embrace
the atmosphere. Though some complain among themselves, no female
employees have found the atmosphere sufficiently problematic to complain publicly. Amanda is uncomfortable with the office environment

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though she has neither been propositioned nor been the direct target ofgender-based conduct or harassment. Amanda has never complained tothe managers about the behavior in the office or its general atmosphere;in part because she did not want to be thought of as a prude and in part
because, while there is a general sense that some minimum of decorum
will be observed in the office, there is no formal harassment policy.
Additionally, she assumed that the atmosphere would not affect her
work or advancement.
Though women are not required to perform job or office functions
that men are not, there is an expectation that women will handle thetasks that might make the workplace somewhat more friendly. Thus,
the women managers and female secretaries have always planned officebirthday parties, luncheons, retreats and the firm's holiday party. In
addition, they have always organized the office's United Way campaign
and coordinated the office's official notes of condolences or gifts offlowers for the deaths or births in families of Xl'Z workers. These tasks
are neither credited nor mentioned in work evaluations.
Amanda's outlook on Xl'Z and its office environment changed when
her friend Becky, another staff accountant, was not promoted to manager a few months ago. Becky, like Amanda, is a friendly, professionaland outstanding accountant. Becky was told that although her work wasoutstanding, she was not promoted because she did not get along withher co-workers as well as, or seem to enjoy working at the company asmuch as, Cindy, the person who was promoted in Becky's stead. Becky
is very upset by the decision. The promotion would have meant a$20,000 pay increase and validation of Becky's superb accountancy
skills. The failure to be promoted has shaken Becky's confidence, andshe is contemplating leaving Xl'Z.
Becky's anxiety was heightened when, upon reflection, both she
and Amanda realized that prior to being promoted to manager each of
the female managers in the office had engaged in sexual banter in theoffice, had participated in the sexually charged atmosphere, and hadvolunteered to do the tasks that women in the office were expected to
do but were not part of their job duties. While Amanda and Becky do
not know if any of the female managers were ever romantically involved with co-workers or other managers, each of the female managers was widely thought to have dated co-workers. Not surprisingly,
Becky believes her treatment was related to her refusal to participate in
the office's atmosphere. Becky and Amanda have avoided participationin the workplace sexual banter and have not volunteered to coordinate
office parties and the like. Amanda is also upset, believing that she also
will not be promoted because she has not actively participated in theoffice atmosphere. Both believe that in order to become managers, ei-

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Unwelcomeness and the Hostile Environment

737

ther they will need to be substantially better candidates for promotion
than those who embrace the office atmosphere, or they will have toembrace the atmosphere. Not surprisingly, both are concerned about
their futures and are upset that they need to accede to the gendered office culture to succeed.
II. SEXUAL HARASSMENT
Title VII seeks to remove all gender-based barriers to employment
success by prohibiting sex discrimination in the workplace. 7 This Article focuses on intentional discrimination, though Title VII also bans
unintentional discrimination. 8A.

Sexual Harassment and Disparate Treatment

Historically, intentional sex discrimination under Title VII has been
divided into disparate treatment and sexual harassment, with the two
types of discrimination being treated differently. 9 Disparate treatment
was the first type of sex discrimination recognized under, Title VII, andhas always been indisputably prohibited by Title VII. 10 It occurs whenan employee is treated differently with respect to compensation, terms,
conditions or privileges of employment because of sex (e.g., when awoman is denied a job because she is a woman or a man is denied a job
because he is a man). 11 While disparate treatment claims can be quite
varied, they all stem from the basic notion that an employee was denied
specific job benefits or provided those benefits in a discriminatory
manner because of the employee's gender. 12
Though sexual harassment and disparate treatment have often been
considered distinct, both are actionable because they are types of sex
7.
Title VII, among other things, prohibits employers from "discriminat[ing] against any
individual with respect to his compensation, terms, conditions or privileges of employment because of such individual's ... sex." 42 U .S.C. § 2000e-2(a)(1) (2001).
8.
Nonintentional discrimination is termed disparate impact discrimination and occurs whena facially neutral job qualification has the impact of disqualifying a disproportionate number of
employees of a particular gender, race, etc., from a particular job or benefit of such job. See
Wards Cove Packing Co. v. Atonia, 490 U.S. 642 (1989); Griggs v. Duke Power Co., 401 U.S.
424 (1971).
9.
See Rebecca Hanner White, There's Nothing Special About Sex: The Supreme Court
Mainstreams Sexual Harassment, 7 WM. & MARY BILL RTS. J. 725, 726 (1999) ("[F]ederal
judges confronting sexual harassment cases have treated these claims as something special ordifferent from run of the mill discrimination claims.").
10. See Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971); Sprogis v. United Air
Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971) (noting generally that Title VII outlaws disparate treatment).
11. See Phillips, 400 U.S. at 542; Sprogis, 444 F.2d at 1198.
12. See, e.g., UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991); Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989); Phillips, 400 U.S. at 544.

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discrimination. 13 Indeed, the similarities between sexual harassment anddisparate treatment are such that some sexual harassment claims can beviewed merely as disparate treatment claims in which the subject conduct is harassing. 14 Nonetheless, from a practical standpoint, the structures of proof surrounding the sexual harassment claim distinguish itfrom a disparate treatment claim. 15 For example, while disparate treatment discrimination need merely result in harm to an employee's termsof employment, actionable sexual harassment must be offensive andunwelcome. 16 These and other requirements change the nature of sexual
harassment from a general sex discrimination claim to a claim ostensibly aimed at a specific type of conduct.
Indeed, the theory underlying the sexual harassment claim wasthought sufficiently different than that underlying disparate treatment
discrimination that sexual harassment was not immediately recognized
as actionable under Title VII. 17 When first examined by courts, sexual
harassment was often thought to have occurred when sex-based conduct, such as acquiescence to sexual demands or the willingness to endure sexual advances, was made a term or condition of an employee's
employment. 18 Indeed, according to the Equal Employment Opportunity
13. See White, supra note 9, at 726-30; Steven L. Willborn, Taking Discrimination Seriously: Oncale and the Fate of Exceptionalism in Sexual Harassment Law, 7 WM. & MARY BILL
RTS. J. 677, 678 (1999) (noting that Oncale, a sexual harassment case, "brings discriminationback into sexual harassment law"). Of course, many courts may provide justifications to treat thetypes of discrimination somewhat differently. See Cheek v. Peabody Coal Co., 97 F.3d 200 (7thCir. 1996).
14. Based on the definitions of disparate treatment and sexual harassment, little seems to
distinguish them. I and others have argued that sexual harassment is merely a specialized versionof sex discrimination. See generally Chambers, supra note 6; White, supra note 9; Willborn,supra note 13.
15. Compare Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), with Meritor Sav. Bank v.
Vinson, 477 U.S. 57 (1986). These distinctions can lead to confusion regarding why sexual
harassment is considered sex discrimination. Recently, some commentators have explicitly notedthat courts have never explained precisely why sexual harassment is sex discrimination. See
Kathryn Abrams, The New Jurisprudence of Sexual Harassment, 83 CORNELL L. REV. 1169
(1998); Anita Bernstein, Treating Sexual Harassment with Respect, 111 HARV. L. REV. 445(1997); Katherine M. Franke, What's Wrong with Sexual Harassment?, 49 STAN. L. REV. 691(1997); Vicki Schultz, Reconceptualizing Sexual Harassment, 107 YALE L.J. 1683 (1998). Indeed, multiple explanations of why sexual harassment constitutes sex discrimination have always
abounded. See generally Abrams, supra note 15 (discussing historical and recent theories ofsexual harassment); Michael D. Vhay, Note, The Harms of Asking: Towards a Comprehensive
Treatment of Sexual Harassment, 55 U. CHI. L. REV. 328, 340-41 (1988) (discussing various
early sexual harassment theorists).
16. Compare Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), with Meritor Sav. Bank v.
Vinson, 477 U.S. 57 (1986).
17. See Vhay, supra note 15, at 332 ("When plaintiffs first began to bring sexual harassment
claims under Title VII, the courts rejected them.").
18. This was expected given the style of case that those courts saw. See CATHARINE A.
MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION
59-77 (1979) (detailing early sexual harassment cases where sexual activity was nearly invariably
linked to the provision of job benefits).

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Commission (EEOC), sexual harassment specifically includes, and isarguably defined as, "[u]nwelcome sexual advances, requests for sexual
favors, and other verbal or physical conduct of a sexual nature. " 19 Not
surprisingly, the prototypical sexual harassment allegation was that amale supervisor requested sexual favors from a female subordinate. 20
However, rather than view sexual harassment as the improper linking of employment to sex-based conduct barred by Title VII's prohibition on sex discrimination, some courts determined that sexual harassment was a private matter between a supervisor and a subordinate that
did not implicate the employment relationship, the employer, or Title
VII. 21 Sexual harassment was viewed merely as an inappropriate manifestation of sexual desire occurring not because of gender, but becauseof characteristics of the particular employees involved. 22 This vision ofsexual harassment has been supplanted by one which recognizes that,when sex-based conduct or sexual activity is linked to terms of employment, Title VII is implicated. 23 Simply, a supervisor who requiresthat an employee either engage in sex-related activities with him or lose
19. 29 C.F.R. § 1604.1l(a) (2001). However, conduct that may not always be viewed asstrictly sexual can also support a sexual harassment claim. See, e.g., Smith v. Sheahan, 189 F.3d
529, 532-35 (7th Cir. 1999) (describing violent but non-sexual harassment that might support asexual harassment claim); Shepard v. Slater Steels Corp., 168 F.3d 998, 1002 (7th Cir. 1999)(suggesting that non-sexual harassment can be part of harassment claim).
20. See MACKINNON, supra note 18, at 59-77 (detailing early sexual harassment cases which
seemed to consist almost exclusively of male supervisors harassing subordinate female employees
in that manner).
21. The notion was that the activity involved was driven by the personal proclivities of theputative harasser and therefore was not related to employer policy. See MACKINNON, supra note
18, at 59-60. Indeed, courts have continued to argue that sexual harassment is not generally in an
employer's interest. See, e.g., Dees v. Johnson Controls World Servs., Inc., 168 F.3d 417, 421
n.9 (11th Cir. 1999) ("Most sexual harassment, however, arises from gender-based prejudice ora desire for sexual gratification, rather than for the purpose of furthering the employer's interests."). Of course, the notion that an employer has no incentive to allow sexual harassment tocontinue may be wrong. Employers have an incentive to allow sexual harassment to continue if
the result is a more productive workplace on average. See J.M. Balkin, Free Speech and Hostile
Environments, 99 COLUM. L. REV. 2295, 2305 (1999) ("Employers may accept (or ignore) sex
discrimination by their male employees (including discrimination through sexual harassment) inorder to avoid labor disruption and preserve esprit de corps and loyalty among a particular classof valuable (male) workers."). When the owner of the business is the harasser, that sexual harassment is not in the employer's interest becomes less tenable. Cf. Christina A. Bull, Comment,
The Implications of Admitting Evidence of a Sexual Harassment Plaintiff's Speech and Dress in
the Aftermath of Meritor Savings Bank v. Vinson, 41 U.C.L.A. L. REV. 117, 135-43 (1993)(noting that the power to sexually harass may come from power in the workplace wielded bysupervisors and business owners). Such was the case in Harris v. Forklift Systems, Inc., 510
u.s. 17 (1993).
22. See MACKINNON, supra note 18, at 59-60; Vhay, supra note 15, at 334 ("In order to
win their discrimination actions, sexually harassed plaintiffs realized that they had to convince
the courts that harassment involved more than 'personal' acts.").
23. See Karibian v. Columbia Univ., 14 F.3d 773, 778 (2d Cir. 1994) (conditioning terms of
employment on acquiescence to harassing conduct is crux of harassment claim); Bridges v. Eastman Kodak Co., 885 F. Supp. 495, 496-98 (S.D.N.Y. 1995) (noting generally that sexual harassment is based on linking gender-based conduct to terms of employment).

Alabama Law Review

740[Vol. 53:3:733

her job has altered the employee's terms of employment and makes thedemand at least in part because of the employee's sex. 24 Thus, the supervisor has engaged in actionable conduct. 25

B.

Quid Pro Quo and Hostile Work Environment Harassment

Historically, sexual harassment has been divided into quid pro quo
and hostile work environment harassment. 26 Until relatively recently,
the distinction between the types of harassment was thought to be in thetype of conduct that caused the harm. Quid pro quo harm was thought
to flow from explicit demands for sexual conduct usually initiated by an
employee's superior; hostile work environment harm was thought toflow from an atmosphere of abuse surrounding the employee's workplace, whether created by superiors or not. 27 However, the Supreme
Court has determined that the sole difference between quid pro quo andhostile work environment harassment is that quid pro quo harassment
results in tangible job detriment, 28 while hostile work environment harassment does not. 29 The key is the effect that the harassment has on theterms, conditions or privileges of an employee's employment, rather

24. See supra note 6 and accompanying text.
25. That it took so long for some courts to realize this may be a testament to sexism in oursociety. Cf. Wendy Pollack, Sexual Harassment: Women's Experience vs. Legal Definitions, 13
HARV. WOMEN'S L.J. 35, 45-46 (1990). Pollack states that:
Sexual harassment was first recognized in 1976 as a legal cause of action under Title VII of the Civil Rights Act of 1964. Prior to this, courts treated sexual harassment in the workplace as a personal matter, neither employment-related nor sexbased. But the history and pervasiveness of sexual harassment in the workplace has
been well documented.
/d. at 45-46 (footnotes omitted). Vhay, supra note 15, at 337 (noting that the transformation ofviewing sexual harassment as "an outgrowth of inharmonious personal relationships to a recognition that many forms of harassment are discriminatory" took twelve years).
26. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca
Raton, 524 U.S. 775 (1998); Lucas v. South Nassau Communities Hasp., 54 F. Supp. 2d 141,146 (E.D.N.Y. 1998) (noting that quid pro quo and hostile work environment are the two typesof sexual harassment).
27. Compare Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1315 (11th Cir. 1989),
with Lucas, 54 F. Supp. 2d at 146.
28. See E/lerth, 524 U.S. at 753-54. I have argued elsewhere that whenever an employee's
terms of employment include the acceptance of any form of sexual harassment, a quid pro quo
harassment claim should lie. See Chambers, supra note 6, at 1614-15. Whether the job detrimentis tangible should matter, not whether the job detriment is substantial. See Bryson v. Chicago
State Univ., 96 F.3d 912, 916-17 (7th Cir. 1996) (noting that relatively minor tangible job detriment can support a quid pro quo claim); Collins v. State of Ill., 830 F.2d 692, 703 (7th Cir.
1987) (noting various types of job detriment that do not affect a plaintiff's income). But see
Theresa M. Beiner, Do Reindeer Games Count as Terms, Conditions or Privileges of Employment Under Title VII?, 37 B.C. L. REV. 643 (1996); Rebecca Hanner White, De Minimis Discrimination, 47 EMORY L.J. 1121 (1998).
29. Historically, they had been thought to be more fundamentally different. See Bryson, 96
F.3d at 915 (7th Cir. 1996) (noting that basis for quid pro quo harassment was recognized before
basis for hostile work environment discrimination).

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than the type of conduct that supports each cause of action. 30 The prototypical example of quid pro quo harassment-a supervisor's terminationof a subordinate for refusing to yield to the supervisor's sexual demands-constitutes quid pro quo harassment because gender-based harassment concretely altered an employee's terms of employment andresulted in a tangible job detriment (i.e., the firing). 31
Hostile work environment harassment is sexual harassment that
constructively alters an employee's terms or conditions of employment, 32 but does not result in actual job detriment. 33 Such harassment
must be severe or pervasive, offensive to the plaintiff, 34 offensive to areasonable person in the plaintiffs situation, and unwelcome. 35 In addition, the employer must be deemed responsible for the harassing conduct or its result. 36 The test for what constitutes a hostile work envi30. The difference can be so slight that some question whether the terms quid pro quo andhostile work environment are of much value at all. See Ellerth, 524 U.S. at 751 (1998) ("Theterms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or areabsent altogether, but beyond this are of limited utility.").
31. See id. at 753-54; Karibian v. Columbia Univ., 14 F.3d 773, 778 (2d Cir. 1994).
32. See Mendoza v. Borden, Inc., 195 F.3d 1238, 1245-46 (11th Cir. 1999).
33.
Of course, the atmosphere in which an employee works can be as important as any otherterm of employment. See Barbara Verdonik, Comment, Abolishing the Quid Pro Quo and Work
Environment Distinctions in Sexual Harassment Cases Under the Civil Rights Act of 1964: Vinson v. Taylor, 60 ST. JOHN'S L. REv. 177, 190 (1985) ("[E]mployers delegate to their supervisors the authority to maintain a good working environment-and that environment constitutes asignificant employment right.").
34. See Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995) (noting that actionableharassment must be subjectively offensive to plaintiff); Jenson v. Eveleth Taconite Co., 824 F.
Supp. 847, 876 (D. Minn. 1993) (noting that sexual harassment requires subjective harm, andsuggesting that when multiple women are subjected to the same conduct some may be harmed
and others may not be harmed).
35. See Burns v. McGregor, 955 F.2d 559, 564 (8th Cir. 1992). The Burns court stated that:
To prevail in her sexual harassment claim based on 'hostile environment', Burns
must show that 1) she belongs to a protected group; 2) she was subject to unwelcome sexual harassment; 3) the harassment was based on sex; 4) the harassment affected a term, condition, or privilege of employment; and 5) McGregor knew orshould have known of the harassment and failed to take proper remedial action.
/d. The EEOC guidelines note that conduct is considered sexual harassment:
when (1) submission to such conduct is made either explicitly or implicitly a termor condition of an individual's employment, (2) submission to or rejection of suchconduct by an individual is used as the basis for employment decisions affecting
such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.
29 C.F.R. § 1604.ll(a) (2001).
36. See Balkin, supra note 21, at 2297 (noting that only employers that knew or should have
known will be liable under Title VII); accord Note, Notice in Hostile Environment Discrimination Law, 112 HARV. L. REV. 1977, 1978 (1999). This requirement has led to the creation of anaffirmative defense for the employer. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765(1998) ("The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise."); Faragher v. City of Boca Raton, 524

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742[Vol. 53:3:733

ronment is not precise, and context matters. 37 Therefore, when, as inHarris v. Forklift Systems, Inc., 38 the president of a company continually insults an employee because of her gender, suggests that her success with customers may be due to promises of sexual activity, andsuggests that her salary could be negotiated with him in a motel room, ahostile work environment may exist. 39 Even though no tangible job detriment occurred-the employee quit rather than continue to endure thebehavior40-the gender-based conduct created an atmosphere in which
the harasser's conduct may have made the plaintiffs job significantly
more difficult to do because of her gender. 41 The plaintiff suffered harm
to be sure, but there did not appear to be a tangible job detriment.
Though the style of behavior underlying the two types of sexual
harassment can appear different, the same behavior that can support aquid pro quo claim may also support a hostile work environment claim.
For example, in Meritor Savings Bank v. Vinson, the plaintiff alleged·that her supervisor made sexual advances toward her, fondled her and
raped her on several occasions. 42 The plaintiff interpreted the conduct
as quid pro quo-style harassment in that she feared that she would lose
her job if she did not engage in sexual relations with her supervisor. 43
Indeed, had the supervisor fired the employee for refusing to acquiesce,
her claim would have been a quid pro quo one. 44 However, the Court
alternatively characterized the supervisor's alleged behavior as hostilework environment harassment because, even if the supervisor did notcondition job benefits on engaging in sexual relations, the conduct wasof the type and severity that the plaintiff's terms of employment may
have been constructively altered by having to endure it. 45 That is, theenvironment that resulted from the conduct amounted to the discriminatory provision of conditions of work because of her sex.
Hostile work environment harassment, whether stemming fromu.s. 775, 807 (1998).
37. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) ("[W]hether an environment is'hostile' or 'abusive' can be determined only by looking at all the circumstances."); Baskerville
v. Culligan Int'l Co., 50 F.3d 428, 431 (7th Cir. 1995) (noting that the "line between a merely
unpleasant working environment on the one hand and a hostile or deeply repugnant one on theother" is not bright).
38. 510 u.s. 17 (1993).
39. See Harris, 510 U.S. at 19.
40.

/d.

41. However, that an employee's job was more difficult to do does not mean that the qualityof the plaintiff's work declined. See Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1455 (7thCir. 1994) ("The absence of a noticeable decline in job productivity should therefore not be
unduly emphasized where there is ample evidence showing that the campaign of harassment had
an impact on its target and made it more difficult for her to do her job.").
42. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 60 (1986).
43. Vinson, 477 U.S. at 60.
44. !d. at 65.
45. /d. at 62-73.

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conduct affecting the working atmosphere as in Harris, or from conductthat can be fairly viewed as a prelude to quid pro quo conduct as inVinson, 46 focuses on the conditions under which an employee works.
These conditions may reflect all conduct that creates the atmosphere towhich the employee is subjected, not merely the harassment targeted ather. 47 In this way, the conduct supporting a hostile work environment
harassment claim can encompass far more than the face-to-face conductthat typifies quid pro quo harassment. As we will see later, that hostilework environment harassment can be of a very different style of conduct than quid pro quo harassment is important in considering the role
unwelcomeness should play in sexual harassment jurisprudence.
C.

Sex, Gender and Sexual Harassment

Sexual harassment's initial focus on sex-based conduct put sexual
activity, rather than the differential treatment of employees because ofsex, at the heart of sexual harassment jurisprudence, and necessarily
put such activity at hostile work environment's core. 48 However, as
sexual harassment jurisprudence has evolved, it has been recognized as
gender-based harassment of which sex-based harassment is a subset. 49
Whether the conduct at issue is sex-based is secondary to whether the
conduct is gender-motivated. 50 Thus, while sex-based conduct can create Title VII liability by constructively altering the terms of an employee's employment, it does not encompass all the conduct that can doso. 51 Because courts have started to realize that hostile work environment harassment may include gender-related harassment that constructively alters an employee's terms of employment, those who harass anemployee in a non-sexual way merely because of her gender (e.g., by
46. Conduct from either style of harassment can help support a hostile work environment
claim. See Chambers, supra note 6, at 1620-21.
47. See Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991)(detailing various workplace harassment and suggesting that all such harassment could contributeto a hostile work environment); Balkin, supra note 21, at 2296-97 ("A hostile environment ismade up of individual acts of discriminatory speech and other conduct by all the persons who
inhabit a workplace, including managers, employees, and even occasionally clients and customers.").
48. Of course, even when sex-based conduct is key to a sexual harassment claim, sex does
not necessarily cause the change in terms of employment, though the misuse of sex can. See
Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1997); Mary F. Radford, By Invitation
Only: The Proof of \Velcomeness in Sexual Harassment Cases, 72 N.C. L. REV. 499, 543 (1994)(arguing generally that misuse of sex, rather than sex itself, is the problem).
49. See, e.g., King v. Hillen, 21 F.3d 1572, 1583 (Fed. Cir. 1994) ("Conduct that is basedon the sex of the victim, whether or not the conduct is 'of a sexual nature,' is appropriately
considered in determining whether an abusive or hostile environment has been created.").
50. See Oncale, 523 U.S. at 78.
51. See, e.g., Carr v. Allison Gas Turbine, 32 F.3d 1007, 1009 (7th Cir. 1994) (noting a
blend of sex-based and gender-based harassment aimed at the only female worker in a tinsmithshop).

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demeaning her to others or destroying her work tools), may engage inhostile work environment harassment. 52
Title VII seeks to allow all workers to succeed based on ability
rather than their gender. Making hostile work environment sexual harassment actionable embraces this goal by attempting to eliminate harmful gender-motivated harassment. 53 Whether workplace conduct produces a uniquely hostile workplace atmosphere for a particular worker
through sexual advances, propositions and other conduct, or a generally
hostile workplace atmosphere that harms any or all workers of a particular sex, hostile work environment harassment liability can be used
to make certain that the conditions under which an employee works will
not harm that employee's ability to succeed because of sex. 54 The
evolving nature of sexual harassment law forces us to reexamine
whether the unwelcomeness requirement helps or hinders the appropriately forceful application of Title VII. 55
Our hypothetical situation helps crystallize some of the issues. The
workplace at XfZ is gendered and sexualized. That is, gender-based
conduct in the workplace is pervasive. If such conduct amounts to harassment that affects Amanda or Becky's terms of employment, Title VII
may be breached. The promotion pattern at XfZ may suggest thatunless Amanda and Becky are willing to participate in and perpetuate
the gendered and sexualized atmosphere at XfZ, they will not reach
their potential at XfZ. This appears to be a gender-based harm. Were
Becky to bring a claim, it would stem from her advancement having
been contingent on embracing the workplace atmosphere. Similarly,
Amanda's potential hostile work environment claim would be based on
the notion that the gendered workplace atmosphere necessarily makes
52. Recognition of this may be somewhat uneven because some courts have regarded genderbased harassment as sexual harassment for a long time while others have only recently realized
it. See Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir. 1987); McKinney v. Dole,
765 F.2d 1129, 1131 (D.C. Cir. 1985); see also Bull, supra note 21, at 138-40 (noting that coworkers can send powerful sexually harassing signals that are unrelated to sex).
53. Conduct that is not harinful would not be a problem. See Radford, supra note 48, at 541("The goal of sexual harassment law in general is not to eliminate the sexual undercurrent atwork, an undercurrent that may be beneficial or at least nonoffensive to many individuals of bothgenders, but rather to hold those who would force it on others responsible for their actions.").
54. The employee need not be harmed enough to hurt her performance. She need merely beprovided poorer conditions in which to work because of her sex. See Davis v. United States
Postal Serv., 142 F.3d 1334, 1341 (lOth Cir. 1998) (noting generally that worker's ability tofunction in job need not be impaired for worker to suffer from hostile work environment); Kingv. Hillen, 21 F.3d 1572, 1583 (Fed. Cir. 1994) ("That women who are the objects of discriminatory behavior because of their sex are able to maintain satisfactory job performance is not
grounds for denigrating their concerns.").
55. For an example of a particularly aggressive (and possibly correct) stance toward protecting workers, see Joshua Burstein, Testing the Strength of Title VII Sexual Harassment Protection:
Can It Support a Hostile Work Environment Claim Brought By a Nude Dancer?, 24 N.Y.U. REV.
L. & Soc. CHANGE 271, 314 (1998) (concluding that Title VII should protect nude dancers fromsexual harassment).

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her job more difficult to do because of gender, by forcing her to accept
the workplace atmosphere or be a better worker in order to have achance to advance. Because the workplace conduct and atmosphere appear to limit Amanda's and Becky's potential because of sex-a real
Title VII harm-whether Amanda or Becky will have a viable Title VII
claim may depend on whether the conduct at issue is sufficient to sustain a sexual harassment claim, including whether the conduct at issue
is unwelcome.
III. UNWELCOMENESSA.

The Genesis of UnwelcomenessSexual harassment's unwelcomeness requirement stems from the
EEOC's Guidelines on Discrimination Because of Sex, originallypromulgated in 1980. 56 Those Guidelines note that:
Unwelcome sexual advances, requests for sexual favors, andother verbal or physical conduct of a sexual nature constitutesexual harassment when (1) submission to such conduct is madeeither explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's
work performance or creating an intimidating, hostile, or offensive working environment. 57
These Guidelines have been consistently cited by courts as a working definition of sexual harassment. 58 Though the Guidelines provide alist of conduct that may constitute sexual harassment, some courts seem
to take the Guidelines to be the definition of sexual harassment, treating
the listed conduct as exclusive. 59 Regardless of how fully the Guidelines
56. 29 C.F.R. § 1604.ll(a) (2001).
51. § 1604.11(a).
58. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 68 (1986) (citing the Guidelines andnothing more to support its suggestions that "[t]he gravamen of any sexual harassment claim isthat the alleged sexual advances were 'unwelcome"'); Rabidue v. Osceola Ref. Co., 805 F.2d
611, 619 (6th Cir. 1986) (citing the Guidelines and noting that plaintiff had to prove that she"was subjected to unwelcomed sexual harassment"); Henson v. City of Dundee, 682 F.2d 897,
903 (11th Cir. 1982) (citing the Guidelines to support notion that an element of a hostile work
environment claim is that "[t]he employee was subject to unwelcome sexual harassment.") (emphasis omitted).
59. Indeed, courts suggesting that sexual harassment conduct must be sex-based, rather thanmerely gender-based, would seem to have taken this position. See, e.g., Jones v. Flagship lnt'l,
793 F.2d 714, 720 n.5 (5th Cir. 1986); Downes v. Fed. Aviation Admin., 775 F.2d 288, 290(Fed. Cir. 1985).

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are deemed to have defined sexually harassing conduct, courts haveconsistently suggested that conduct supporting an actionable sexual harassment claim must be unwelcome. 60
Underlying the unwelcomeness requirement is the notion that conduct related to sexual activity is at the core of sexual harassment law,and that because it can be welcome outside of the workplace, it can also
be welcome when it occurs in the workplace. 61 In addition, the fact thatunwelcomeness is required suggests that all conduct supporting a harassment claim must be unwelcome to be actionable. 62 Two problems
accompany the above notion. First, because sex-based conduct is not
the only type of sexually harassing conduct in the workplace, requiringthat all conduct supporting an actionable sexual harassment claim be
unwelcome may not be sensible. Second, as sex-based workplace behavior may have different implications than sex-based behavior outsideof the workplace, treating them as similar may not make sense. 63 The
power inequalities inherent in the workplace may suggest that sex-based
workplace conduct should not be treated merely as sex-based conductthat happens to occur in the workplace. 64
Nonetheless, the unwelcomeness requirement has at least two possible justifications. The first is that welcome conduct causes no harm to
the employee's terms, conditions or privileges of employment. This
would seem to stem from the belief that sexual harassment prototypically involves sexual advances and requests for sexual activity-conduct
See supra notes 1, 58.
See Janine Benedet, Hostile Environment Sexual Harassment Claims and the Unwelcome
Influence of Rape Law, 3 MICH. J. GENDER & L. 125, 159 (1995) (noting that "[t]he EEOC has
60.
61.

defended the inclusion of this [unwelcomeness] element in the prima facie case on the groundthat the same behavior can amount to harassment or to enjoyable sexual activity, depending on
the attitudes of those involved" and citing the EEOC's amicus brief in Meritor Sav. Bank v.
Vinson, 477 U.S. 57 (1986)).
62. Some courts appear to view the ultimate sexual activity as the activity that must be welcome or unwelcome, with the steps leading up to the activity being important but not central tothe inquiry. This theory would suggest that if a supervisor thinks that an employee might besexually attracted to him, then the steps used to determine whether the attraction exists are notreally subject to liability. See Dockter v. Rudolf Wolff Futures, Inc. 913 F.2d 456, 459-60 (7thCir. 1990) (suggesting that the fondling of a subordinate's breast may merely have been misguided attempt at signaling attraction rather than harassment).
63. The power inequality occurring in the workplace may not occur in other situations. See
MACKINNON, supra note 18, at 1-2 (noting the power dynamic in the workplace that makes
sexual harassment particularly problematic); Ann C. Juliano, Note, Did She Ask For It?: The"Unwelcomen Requirement In Sexual Harassment Cases, 77 CORNELL L. REV. 1558, 1575
(1992) ("[T]he 'unwelcomeness' requirement . . . does not adequately account for the power
dynamics of the workplace.").
64. See Benedet, supra note 61, at 166 ("To argue that welcomeness is presumed and thatunwelcomeness must be proven is to assume that sexual comments or physical touching arewanted by women at work."); Radford, supra note 48, at 504-05 ("While physical contact may
be inevitable and normal in a crowded world, sexual advances in the workplace need not be an
inevitable aspect of a gender-integrated work environment and will only be characterized as'normal' if machismo is used as the measuring standard of normalcy.").

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that can literally be enjoyed. Were sexual harassment so limited, andwere such conduct required to be affirmatively welcomed by the target
to be deemed welcome, such conduct might be harmless to the employee's terms of employment. When unwelcome harassment in theform of a sexually predatory boss is juxtaposed with welcome sex-based
conduct in the form of a pleasurable office romance, 65 requiring unwelcomeness may appear reasonable. Similarly, when playful sexual banterand mild off-color joking is juxtaposed with ugly, unwanted harassment
based on gender animus, requiring unwelcomeness may seem reasonable. However, as suggested below, some conduct deemed not unwelcome may cause sexual harassment harm.
The possibility that some sex-based workplace conduct may notcause harm has led some courts to assume that such conduct is welcome
until proven otherwise. 66 This assumption takes an overly simplified
view of such conduct. 67 It suggests that a particular employee's willingness to engage in sex-based conduct in the workplace justifies assumingthat any employee may be open to an office romance until that employee makes clear that she is not. 68 Further, it suggests that an employee's possible openness to romance with one co-worker allows theassumption that the employee is open to romance with any co-worker
until the employee makes clear that she is not. 69
65. See Niloofar Nejat-Bina, Employers as Vigilant Chaperones Armed with Dating Waivers:
The Intersection of Unwelcomeness and Employer Liability in Hostile Work Environment Sexual
Harassment Law, 20 BERKELEY J. EMP. & LAB. L. 325, 326 (1999) (noting prominent examples
of successful workplace courtship, including that of Melinda French and her husband Bill Gates).
66. See discussion infra Part III.B. Of course, this is the logical implication. See Nejat-Bina,
supra note 65, at 330 (noting that the implication of requiring proof of unwelcomeness is to
assume that sexual conduct was welcome). There is a difference between an employee who
makes sexual advances that become harassing and an employee who harasses through sexual
advances. That we cannot necessarily tell the difference between the two does not suggest that weshould assume that all employees are merely making sexual advances that may become harassing.
67.
Some have criticized the general view harshly. See, e.g., Miranda Oshige, Note, What's
Sex Got To Do with It?, 47 STAN. L. REv. 565, 577 (1995) ("The unwelcomeness requirement is
gratuitous, punitive, and reflects some of society's most insidious and outdated stereotypes about
women and sexual behavior.").
68. Of course, this concern might be addressed if the employee's openness to romance withothers was not treated as evidence of openness to romance to the subject harasser. See Juliano.{supra note 63, at 1590 (suggesting that evidence regarding welcomeness be limited to conduct
occurring between the plaintiff and harasser); Radford, supra note 48, at 505-06 (suggesting that
evidence regarding welcomeness be limited to conduct occurring between the plaintiff and theharasser).
69. See Benedet, supra note 61, at 140 (noting that the investigation of woman's sexual
background in harassment cases is based on the notion that "[s]exual acts are . . . essentially
fungible for women, both as to the partner with whom they engage in them and as to the locationin which they take place."); Bull, supra note 21, at 128 (noting that when evidence that plaintiff
engaged in sexual relations with co-worker is deemed relevant to unwelcomeness the suggestion
is made that the willingness to sleep with one co-worker implies a willingness to sleep with otherco-workers); Juliano, supra note 63, at 1591 (noting that employee's desire for romance with one
co-worker does not necessarily suggest the desire for romance with all co-workers); Joan S.
Weiner, Note, Understanding Unwelcomeness in Sexual Harassment Law: Its History and a

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The second explanation or justification for the unwelcomeness requirement is that the requirement is necessary to protect the employer
or the putative harasser or both. This stems from the twin notions thatthe employer must be responsible for the Title VII harm70 and that potentially harassing conduct is only problematic when the victim complains about it. 71 These notions suggest that it is not the nature of theharasser's conduct, but the response it engenders, that makes it problematic. Thus, knowledge that the conduct was unwelcome informs theharasser and might alert the employer that official corrective actionneeds to be taken. This would provide the factual background to provethat harm flowed from the continuation of the conduct. When viewed
this way, the unwelcomeness inquiry would require that the mistaken
putative harasser or the employer be given notice that the conduct isharassing or unwelcome, with such notice being provided when the victim tells the harasser that the conduct is problematic. 72
Though the requirement that sexual harassment be unwelcome to beactionable may seem reasonable to some, the lack of judicial analysis
regarding why all sexually harassing conduct must be unwelcome tosupport an actionable claim is problematic. 73 While the interpretationthat courts have consistently given the Guidelines-and the implicationthat all actionable sexually harassing conduct must be unwelcome to beactionable-may be reasonable, it has not been rigorously analyzed andis not the only plausible interpretation of the Guidelines. For example,
the Guidelines can be read as requiring merely that sexual advances,
but not other potentially harassing conduct, be unwelcome to be actionable. That sexual advances alone could be required to be unwelcome tobe actionable is plausible precisely because welcome sexual advances
could be innocuous precursors74 to a personal relationship that might or
Proposal For Reform, 72 NOTRE DAME L. REV. 621, 631 (1997) ("Admission of these kinds offacts reflects the old-fashioned view that if a woman is willing to have sex with one man, shemust be the type willing to have it with everyone.").
70. See Burlington Indus., Inc. v. Ellerth, 524 U.S 742 (1998); Faragher v. City of Boca
Raton, 524 U.S. 775 (1998); Henson v. City of Dundee, 682 F.2d 897, 905 (11th Cir. 1982)(noting that respondeat superior is a requirement of a sexual harassment claim).
71. See Benedet, supra note 61, at 132 (suggesting that requiring proof of unwelcomenessassumes that the plaintiff consented to being harassed unless it is proved otherwise).
72. Knowledge that the conduct was not welcome becomes imperative. See Radford, supranote 48, at 548 ("The rationale for this approach [of unwelcomeness] is that, because sexualinterplay in the workplace is often ambiguous, the legal system should include protections against
those who 'innocently' engage in sexual conduct.").
73. This is similar to concerns that have been voiced about the Supreme Court's lack of
explanation regarding why precisely sexual harassment is sex discrimination. See supra note 15
and accompanying text.
74. Of course, there may be a harm in making the advance. See generally Gertrud M. Fremling & Richard A. Posner, Status Signaling and the Law, with Particular Application to Sexual
Harassment, 147 U. PENN. L. REV. 1069, 1080-95 (1999) (suggesting that the advance may
signal a differentiated status between the person making the advance and the subject of the ad-2002]

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might not develop. 75 Conversely, requests for sexual favors in theworkplace, whether unwelcome or not, can be viewed as always potentially actionable because in the context of an employment relationshipsuch a request may be troublesome in the office environment even whenwelcomed by the person propositioned. The Guidelines note that, undercertain conditions, providing job benefits as a result of acquiescence tosexual favors can support a sexual harassment claim by an employee
who was qualified to receive the job benefit but did not. 76 This suggeststhat implicitly linking job benefits to sex or sex-based activity can beproblematic for the workplace even when the subject of the favoritism
is not harmed by it. 77 Similarly, verbal or physical conduct of a sexual
nature could be considered sufficiently inappropriate that such conduct
could support a sexual harassment claim, whether unwelcome or not.
As unwelcomeness' role in hostile work environment harassment is discussed below, it will become clear how verbal or physical conduct of asexual nature may logically support a Title VII claim though the conduct is not unwelcome to the subject of the conduct. The fact that conduct is not deemed sexual harassment until it alters a plaintiff's terms of
employment also supports the plausibility of the above suggestion. If
terms of employment are altered as a result of conduct, the fact that the
conduct was not unwelcome could be deemed irrelevant to whether Title VII liability existed.
This argument should not be viewed as a suggestion that this alternative reading of the Guidelines is the correct reading. The accepted
vance that can lead to workplace problems); Vhay, supra note 15.
75. Two factors support the possibility that the welcomeness requirement should be limited
to sexual advances. First, a workplace in which employees are allowed to ask each other on dates
as long as the request is not unwelcome, but are never allowed to ask each other for sexual favors or engage in conduct of a sexual nature does not seem particularly bizarre. In such a workplace, employees would be allowed to attempt to begin a personal relationship in the workplace,but would not be allowed to make sexual demands or otherwise turn the workplace into a sexualized one. Second, given that sexual harassment does not become actionable until the conduct
alters the terms of an employee's employment, the EEOC may have assumed that even requests
for sexual favors or conduct of a sexual nature that are not unwelcome can alter an employee's
terms of employment or impair the employee's working atmosphere.
76. See 29 C.F.R. § 1604.ll(g) (2001) ("Where employment opportunities or benefits are
granted because of an individual's submission to the employer's sexual advances or requests forsexual favors, the employer may be held liable for unlawful sex discrimination against otherpersons who were qualified for but denied that employment opportunity or benefit."). Without aclear suggestion that the submission to the advances must encompass the submission to unwelcome advances, it is reasonable to suggest that the submission to welcome advances still may
cause the harm to an employee who was denied a job benefit as a result of the submission toadvances. Though the EEOC's Policy Guidance on Employer Liability under Title VII for Sexual
Favoritism, N-915-048, clarifies this language somewhat in suggesting that the sexual favoritism
must be rampant, it does not suggest that the claim will depend on the welcomeness of the conduct. See EEOC: Policy Guidance on Employer Liability for Sexual Favoritism Under Title VII,
8 LAB. REL. REP. (BNA) (EEOC Notice No. 915-048 (Jan. 12, 1990)).
77. See infra notes 190-92 and accompanying text.

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interpretation of the Guidelines-that all types of sexually harassing
conduct must be unwelcome to be actionable-may be precisely what
the EEOC intended. However, the accepted interpretation has yielded a
received wisdom regarding the implications of the Guidelines that may
be inconsistent with current Title VII jurisprudence. The lack of analysis in adopting and maintaining the accepted interpretation may have led
to the particular manner in which the Guidelines and the unwelcomeness requirement have been used by courts in sexual harassment litigation. By gravitating toward a view requiring that all conduct supportinga sexual harassment claim be unwelcome, many courts have endorsed anarrow view of sexual harassment and a broad view of unwelcomenessthat may not serve Title VII well. This may have occurred, in part,
because some courts, including the Supreme Court on occasion, havebeen willing to invest the EEOC Guidelines with almost as much importas Title VII itself, leading to a lack of reexamination of the implications
that flow from the accepted interpretation of the Guidelines. 78 As fidelity to the principles underlying Title VII may provide a different visionof the unwelcomeness requirement and the conduct that can support asexual harassment claim, a reexamination of unwelcomeness is appropriate. However, before a reexamination can occur, one needs a working theory of unwelcomeness. Ours is that unwelcomeness stems fromthe notions that welcome conduct does not tend to cause harm and thatharassers and employers need affirmative notice that conduct is harassing before the employer is deemed responsible for subsequent similar
conduct.

B.

Defining UnwelcomenessThat conduct must be unwelcome to be actionable is clear; 79 what
constitutes unwelcome conduct is not. Two issues arise in determining
whether conduct is unwelcome for Title VII purposes. The first issue is
how intensely unwelcome conduct must be to be considered unwelcome
under the requirement. The second issue is whether unwelcomenessshould be viewed from the plaintiff's perspective, the defendant's per78. See General Elec. Co. v. Gilbert, 429 U.S. 125, 141-42 (1976) (noting the importanceof the EEOC's interpretation of Title VII); Albemarle Paper Co. v. Moody, 422 U.S. 405, 431(1975) (deference to EEOC interpretation of Title VII); Henson v. City of Dundee, 682 F.2d
897, 903 n.7 (1982) (commenting on the influence of EEOC interpretation of Title VII); Paul
Nicholas Monnin, Proving Welcomeness: The Admissibility of Evidence of Sexual History inSexual Harassment Claims Under the 1994 Amendments to Federal Rule of Evidence 412, 48
VAND. L. REV. 1155, 1163 (1995) (noting the influence of the EEOC Guidelines on courts). Of
course, Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), was a noticeable departure from this method of analysis.
79. See Monnin, supra note 78, at 1168 ("After Meritor and the extension of the Court's
imprimatur, the concept ofunwelcomeness is firmly entrenched in sexual harassment law.").

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751

spective or an objective perspective. Courts have nof resolved either
issue in any unified fashion. 80

1.

What is Unwelcome Conduct?

Determining whether conduct is unwelcome is difficult. Though
courts seem to have a general sense of what the unwelcomeness inquiry
entails, they have been spare in enunciating unwelcomeness principles.
For example, that unwelcome conduct must not have been encouraged
or incited is one of the few long-standing rules of unwelcomeness. 81
However, this common-sense rule can have widely different practical
implications and may leave many situations unaddressed. For example,
the rule can be read to focus on the harasser's belief regarding the welcomeness of the conduct. When read in this way, the rule would seemto deem conduct welcome if a putative harasser mistakenly believed his
conduct had been encouraged, and would seem to apply even if a harasser had an idiosyncratic view of encouragement or incitement. 82
Conversely, the rule could be assumed to focus on encouragement andincitement as a way to determine if the subject actually welcomed the
conduct at the time it occurred, and therefore presumably was notharmed by the conduct. 83 However defined, the lack of clear guidance
regarding a rule that is so commonly invoked is a problem.
Regardless of its interpretation, the rule certainly leaves uncovered
ambiguous situations in which no response to the conduct was made.
So, where the subject of the harassment either attempts to ignore theconduct or declines to specifically address it, the rule seems to leave
the default solution-that the conduct is not unwelcome-undisturbed.
The same may be true when the harassing conduct occurs before thesubject had any other interaction with the putative harasser. The point
is not necessarily to demand more specific rules regarding unwelcome-80. This is hardly surprising given that resort to common sense seems to guide the resolutionof these issues. See Benedet, supra note 61, at 131 ("The content of the unwelcomeness requirement is being developed by the courts on an ad hoc basis, apparently by reference to judicial
common sense.").
81. See Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982) ("In order to constitute harassment, this conduct must be unwelcome in the sense that the employee did not solicit orincite it, and in the sense that the employee regarded the conduct as undesirable or offensive.");Radford, supra note 48, at 519 ("The generally accepted definition of 'unwelcome' conduct is
conduct that the plaintiff did not solicit, invite, or incite and that was offensive or undesirable tothe plaintiff.").
82. Such a view can be used to suggest that conduct that would appear to be clearly unacceptable may yet be desired. See Brooks v. City of San Mateo, 214 F.3d 1082 (9'th Cir. 2000);
Reed v. Shepard, 939 F.2d 484 (7th Cir. 1991).
83. This conventional way of viewing unwelcomeness causes concern in part because it
begins to resemble the consent inquiry in rape cases. See infra notes 139-43 and accompanying
text.

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ness; rather, it is to appreciate that the lack of guidance regarding the
precise parameters of unwelcomeness, combined with the EEOC's suggestion that the unwelcomeness inquiry is context-driven, 84 allows
courts to write on a relatively blank slate each time one examines unwelcomeness, and that that freedom has created a patchwork of caselaw
regarding unwelcomeness. 85
Multiple approaches exist to determine whether conduct is unwelcome, and each is defensible. Sex-related conduct, like all conduct, canbe clearly welcome, clearly unwelcome or any shade in between. 86 How
to treat possibly welcome conduct and possibly unwelcome conduct forsexual harassment purposes are open questions. Some courts have defined welcome conduct to include all conduct except that which is specifically objected to by an employee; others have defined welcome conduct to include only that conduct that is expressly welcomed by an employee.87
The most restrictive courts view the incite-or-encourage rule verybroadly and seem to believe that literally any conduct is potentiallywelcome. 88 Thus, even in situations where plaintiffs have been horribly
abused, some courts have deemed the victim's workplace behavior sufficient to render the abuse welcome and to immunize the harassment
visited upon her. 89 For example, in Reed v. Shepard, 00 the Court viewed
the plaintiff's supposed exhibitionism, suggestive gift-giving and foul
mouth as sufficient encouragement of sexually suggestive conduct thatthe conduct she received in response was deemed welcome. 91 The conduct she endured was extreme:

84. See 29 C.F.R. § 1604.11 (2001).
85. For example, compare Henson, 602 F.2d at 903, with Brooks, 214 F.3d at 1082.
86. See Radford, supra note 48, at 501 ("Sexual advances and conduct in the workplace
appear in the same varieties as these guests-some invited, some not invited but happily accepted, some merely tolerated, and others actually rejected."). For example, note these four
responses to an objectively offensive joke: 1) "that was hilarious, let me tell you one just likeit," 2) "you should not tell jokes like that in the office," 3) silence and 4) "please do not telljokes like that around me." The responses suggest that the joke can be categorized respectively
as clearly welcome; possibly, but not clearly, welcome; possibly, but not clearly, unwelcome;and clearly unwelcome.
87. Many commentators have suggested that courts presume that conduct is unwelcome
unless clearly welcomed by the plaintiff and that the presumption should run in the opposite
direction. See, e.g., Benedet, supra note 61, at 173 ("The element of unwelcomeness should be
removed from the prima facie case, and the burden should be on the defendant to show that theplaintiff actually wanted the impugned conduct."); Radford, supra note 48, at 505 (suggestingthat the burden of proving unwelcomeness shift to defendant who would then have to prove
welcomeness).
88. See Benedet, supra note 61, at 143 n.65 (detailing cases in which plaintiffs behavior
was seen as justification for sexual harassment by co-workers).
89. See Schultz, supra note 15, at 1730-32.
90. 939 F.2d 484 (7th Cir. 1991).
91. Reed, 939 F.2d at 486-87, 491-92.

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Plaintiff contends that she was handcuffed to the drunk tank andsally port doors, that she was subjected to suggestive remarks ..
. , that conversations often centered around oral sex, that she
was physically hit and punched in the kidneys, that her head
was grabbed and forcefully placed in members laps, and that
she was the subject of lewd jokes and remarks. She testified that
she had chairs pulled out from under her, a cattle prod with anelectrical shock was placed between her legs, and that they frequently tickled her. She was placed in a laundry basket, handcuffed inside an elevator, handcuffed to the toilet and her facepushed into the water, and maced. 92
Though proof that this conduct occurred does not necessarily mean thata sexual harassment claim is proven, the notion that the conduct was
actually welcome seems a strange conclusion at best. The willingness toallow terribly abusive behavior to be deemed welcome suggests that theReed court and others like it deem conduct welcome unless unequivocally stated to be unwelcome. 93 Otherwise, abusive conduct would always be deemed unwelcome. 94 Those courts seem to confuse the notionthat some welcome conduct may not yield Title VII harm with the notion that any potentially harassing conduct that does not yield Title VII
harm is potentially welcome. This misapplication of the unwelcomenessrequirement seems to stem from the failure to realize that not all un92. !d. at 486.
93. Unfortunately, some people need to be told explicitly that their conduct is not welcome.
This may explain some courts' requirement that plaintiff show unambiguous unwelcomeness. See
Dockter v. Rudolf Wolff Futures, Inc., 684 F. Supp. 532, 533 (N.D. Ill. 1988). The court statedthat the:Plaintiff began working for Wolff on January 27, 1985. For the first few weeks,
James, as he occasionally did with other female employees at the office, made sexual overtures to-in the vernacular of the modern generation, 'came on to'-her.
Although Plaintiff rejected these efforts, her initial rejections were neither unpleasant nor unambiguous, and gave James no reason to believe that his moves
were unwelcome . . . . After one misguided act, in which he briefly fondled Plaintiff's breast and was reprimanded by her for doing so, he accepted his defeat andterminated all such conduct.
Dockter, 684 F. Supp. at 533. It is unclear why anyone would view the unrequested fondling of asubordinate's breast as presumptively welcome merely because the subordinate has not specifically objected to prior conduct.
However, other courts do not require such clear conduct. See Chamberlin v. 101 Realty, Inc.,
915 F.2d 777, 784 (1st Cir. 1990) ("Where, as in the present case, the employee never verbally
rejects the supervisor's sexual advances, yet there is no contention or evidence that the employee
ever invited them, evidence that the employee consistently demonstrated her unalterable resistance to all sexual advances is enough to establish their unwelcomeness. "). In Chamberlin, theplaintiff continually pulled away from her harasser when he touched her and changed the subject
whenever the harasser made sexually inappropriate comments. See id. at 779-80.
94. Unfortunately, such determinations may stem from courts' opinion of the plaintiff's
character. See Schultz, supra note 15, at 1729 (noting that courts have often suggested that sexually harassing behavior was not unwelcome when the victim did not fit the court's vision of an
appropriately demure victim).

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welcome harassing conduct is sufficient to sustain a sexual harassment
claim. 95
Other courts have suggested a more nuanced approach to unwelcomeness that would allow a wider range of conduct to be considered
unwelcome in the absence of statements of unwelcomeness and in theface of some workplace playfulness.% Thus, harassment that is a substantial overreaction to workplace playfulness is not viewed as automatically welcome merely because the plaintiff demonstrated some receptivity to ribaldry. 97 In Lauro v. Tomkats, Inc., 98 the court noted thatthe plaintiff's use of foul language did not suggest that she welcomed
all of the conduct she experienced in return. That conduct included being propositioned, screamed at, being called vulgar names by various
people on a regular basis and being threatened with beatings. 99 However, the court noted that:the fact that Lauro might have willingly participated in the useof foul language does not foreclose the possibility that the harassment of which she complains was unwelcome. To so conclude would be to assume that as a result of Lauro's occasionaluse of foul language, she would as a matter of law have approved of the sexually explicit and offensive comments to which
she was subjected. The Court declines to make such a formulaic
and unsubstantiated inference. 100
Similarly, in Nuri v. PRC, Inc., 101 the court deemed the transmittal of
dirty jokes and the use of foul language insufficient to make requests
for oral sex and repeated physical touchings of a sexual nature wel-

95. In Reed v. Shepard, 939 F.2d 484 (7th Cir. 1991), the court might have felt compelled
to find that sexual harassment had occurred if the conduct involved had been unwelcome. Thatmay have been sufficient for it to pervert the unwelcomeness inquiry and find the conduct welcome.
96. See Cuesta v. Texas Dep't of Crim. Justice, 805 F. Supp. 451, 456-57 (W.D. Tex.
1991) (noting that though plaintiff did not initially object to somewhat problematic overtures, that
she objected as soon as they became clearly inappropriate meant that they were unwelcome).
97. See Nejat-Bina, supra note 65, at 333-34 ("An employee who engages in sexual behavior
at work cannot 'cry foul' when her co-workers reciprocate, but the reciprocation should matchthe instigator's conduct in degree and kind. Otherwise, it may be considered unwelcome sexual
harassment.").
98. 9 F. Supp. 2d 863 (M.D. Tenn. 1998).
99. Lauro, 9 F. Supp. 2d at 867.
100. ld. at 872; see also Morgan v. Fellini's Pizza, 64 F. Supp. 2d 1304, 1309-10 (N.D. Ga.
1999) (noting that use of foul language does not waive "that plaintiff's legal protections against
unwelcome harassment"). However, in some situations, foul language and sex-related activities
in the workplace can render potentially harassing conduct welcome. See Lucas v. S. Nassau
Cmtys. Hasp., 54 F. Supp. 2d 141, 148 (E.D.N.Y. 1998) (noting that male hospital employee's
discussion of sexual conquests and amorous activity at the workplace might render conduct hewas subjected to welcome).
101. 13 F. Supp. 2d 1296 (M.D. Ala. 1998).

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come. 102
Also, other courts have noted that a willingness to engage in sexrelated banter does not make other gender-based harassment welcome.
In Carr v. Allison Gas Turbine Division, General Motors Corp., 103 theSeventh Circuit determined that efforts to be "one of the boys" does notsuggest that all manner of sexual harassment is welcome. 104 In that case,plaintiff's willingness to tell dirty jokes had been offered to demonstratethat the "campaign of harassment" she was subjected to, including numerous gender-based insults, defacement of her work equipment, andgender-based jokes at her expense, was welcome; the offer was rejected. 105 Similarly, in Lewis v. McDade, 106 the subject workplace's
sexually-charged nature was offered as proof that the abusive and derogatory harassment directed specifically at women in the office was
not unwelcome. 107 The Lewis court noted that sexual repartee that could
yield welcome sexual repartee in return would not support the characterization of the abusive gender-based conduct at issue as welcome. 108
Thus, regardless of the office's general atmosphere, the specific harassment at issue was not welcome. 109
One court has gone one step further and noted that conduct that reasonably appears welcome may yet be unweicome. In Gray v. Tyson
Foods, Inc., uo the court recognized that plaintiff's actions may havestemmed from the plaintiff's perceived need to go along to get along.
The court noted the following:
Although there was evidence that the plaintiff voluntarily participated in the activity she now complains of and that she en102. /d. at 1301. The Nuri court stated that:
PRC's pointing to Nuri's participation in the general office banter, and her statingthat she did not object to it, is not enough to support the conclusion that she was
not subject to unwelcome conduct. Using foul language, or sending or receiving
dirty jokes, does not waive the protections of Title VII.
/d.
103. 32 F.3d 1007 (7th Cir. 1994).
104. /d. at 1011. The Carr court stated that:[e]ven if we ignore the question why 'unladylike' behavior should provoke not avulgar response but a hostile, harassing response, and even if Carr's testimony that
she talked and acted as she did in an effort to be 'one of the boys' is (despite its
plausibility) discounted, her words and conduct cannot be compared to those of themen and used to justify their conduct and exonerate their employer.
/d.
105. /d. at 1010-12.
106. 54 F. Supp. 2d 1332 (N.D. Ga. 1999).
107. Lewis, 54 F. Supp. 2d at 1336-37.
108. That conduct included screaming and cursing at the female employees in the office,guaranteeing that they were put into demeaning positions in the office and hitting female employees. See id. at 1337.
109. See id. at 1344.
110. 46 F. Supp. 2d 948 (W.D. Mo. 1999).

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joyed it, there was also evidence and reasonable inferences fromthe evidence supporting the conclusion that the complained
about conduct was unwelcome. The jury could have concluded
reasonably that a woman in the work environment existing at
defendant's plant had to appear to enjoy participating in the hostile conduct in order to maintain any status in that workplace.
The jury could have concluded that despite plaintiff's involuntary participation, she, in fact, found the conduct offensive andunwelcome. 111
Simply, when a workplace is so ingrained with harassment that the only
reasonable course of conduct is to seem willing to join in the unwelcome activity, the harassment may not be deemed welcome. 112 The
Gray court's approach, while sensible, eviscerates the unwelcomenessrequirement, by allowing a victim to shield her discomfort and thenprove that the conduct involved was unwelcome. This would not provide the putative harasser any reason to believe that his behavior was
inappropriate, given that the behavior might appear to be a measured
response to a plaintiff who seemed willing to engage in sex-based or
gender-based conduct. Arguably, the incite-or-encourage rule was designed to immunize just such conduct. At a minimum, the unwelcomeness inquiry seems geared in part to protect against conduct that theplaintiff affirmatively seemed to welcome. While the Gray court's rule
is not inconsistent with Title VII's principles, the rule alters the unwelcomeness inquiry so much that it may make more sense to eliminate theunwelcomeness inquiry than to view it in this way.
Precisely how unwelcomeness is to be defined remains an open
question given the courts' lack of uniformity. The unwelcomeness inquiry is a contextual one during which courts may use all relevant factors, including whether the plaintiff's actions were reasonable responses
to unwelcome conduct given the workplace atmosphere and whether theputative harasser's responses were reasonable, to determine if the conduct at issue was welcome. The uncertainty attending the substance of
111. Gray, 46 F. Supp. 2d at 953.
112. See Benedet, supra note 61, at 151 Benedet notes that:
Ostracism for refusal to participate in sexual behavior at work may itself become aform of harassment . . . It is therefore hardly surprising that plaintiffs may resign
themselves to joining in [the behavior]. This may mean weathering the comments
and advances good-naturedly, or it may mean more active participation.
/d.; Bull, supra note 21, at 144-45 (noting that joining in banter can simply be an attempt to fit
in, rather than an indication that such banter is welcome). If ostracism is not a form of harassment, the worker suffering from it might have no recourse but to accept it. See Parkins v. Civil
Constructors of Ill., Inc., 163 F.3d 1027, 1039 (7th Cir. 1998) (noting that ostracism by coworkers may not constitute harm covered by Title VII); Drake v. Minnesota Mining & Mfg. Co.,
134 F.3d 878, 882-85 (7th Cir. 1998) (noting that ostracism by co-workers may not be actionable).

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the unwelcomeness inquiry is all the more troubling because the inquiry
can be used to serve very different purposes. However, before examining those purposes and finalizing the content of the unwelcomeness inquiry, we must examine the perspective from which unwelcomenessshould be viewed.

2.

From Whose Perspective?

How precisely the unwelcomeness inquiry should be constructed
may depend on the perspective from which unwelcomeness is analyzed.
The three major perspectives from which welcomeness can be viewed
are the plaintiff's subjective perspective, the putative harasser's subjective perspective and an objective perspective. 113 Each of these can be an
appropriate perspective from which to view unwelcomeness, dependingon what the unwelcomeness inquiry is supposed to add to the generalsexual harassment inquiry 114 (i.e., depending on whether the focus is to
be on the harm to plaintiffs well-being, the defendant's knowledge ofthe inappropriateness of the conduct or the general appropriateness of
sex-based or gender-based conduct in the workplace).
If harm to plaintiff is the ultimate focus of sexual harassment andthe intermediate focus of the unwelcomeness inquiry, viewing unwelcomeness from plaintiffs subjective perspective is sensible. Whether
the conduct was welcome by the plaintiff would be the key issue. Otherwise, there would be no reason to believe that all conduct deemed not
unwelcome does not cause harm. 115 Additionally, because the targets ofthe conduct may have different views than the perpetrator regarding its
unwelcomeness, the target's view of the conduct would seem most important in addressing the harm flowing from such conduct. 116
However, viewing unwelcomeness from the putative harasser's perspective is sensible if a defendant's intent to harass is important117 or if
113. There are five total perspectives, if one includes the perspective of the reasonable person
in plaintiff's position or the reasonable person in the harasser's position. However, I subsume
them in the broad category of the objective perspective. Though this consolidation leaves someissues unexamined, those issues do not affect this Article's analysis.
114. See Monnin, supra note 78, at 1165 (noting that courts have had difficulty determining
the appropriate perspective from which unwelcomeness should be viewed).
115. However, this might lead to the unwelcomeness inquiry being subsumed into sexual
harassment's subjective offense inquiry. This would not be appropriate as unwelcomeness would
merely provide an additional and possibly improper way to analyze subjective offense.
116. A counter-argument set forth more fully below is that because subjective offense isalready required for sexual harassment to be actionable, an unwelcomeness inquiry viewed fromthe plaintiff's perspective would be largely redundant.
117. See Benedet, supra note 61, at 145-48 (noting that some courts find the putative harasser's knowledge of the unwelcomeness of his conduct important). Again, there is the concernthat the inquiry will look quite a bit like the consent inquiry in rape, where the putative rapist'sbelief about consent can become important. See Nejat-Bina, supra note 65, at 350-52 (noting that
requiring proof of unwelcomeness makes sexual harassment law look remarkably similar to rape

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the defendant needs to know that his conduct was harassing. 118 Because
the workplace is a setting in which men and women must interact andmay annoy each other without the intent to do so, 119 an intent to harass
may be considered necessary so that the workplace does not become an
unmanageable minefield. 120 Unfortunately, some unintentional harassment may merely be a manifestation of the differing ways that men andwomen interact. Because the same conduct can be unwelcome or welcome depending on who is subjected to it, the conduct itself is arguably
not problematic unless the target indicates it is unwelcome. 121 Thus, aslong as the conduct clearly would not be unwelcome to everyone subject to it, requiring that the harasser know that the conduct is unwelcome by the target before the conduct is deemed harassing and actionable may be sensible. Of course, the counter-argument is that it is precisely because potentially harassing conduct may be deemed harassing
by some target that the harasser's perspective should be irrelevant indetermining whether the conduct was unwelcome. 122
law).
118. Society may care about the intent to harass, not out of the desire to roughly equate sexual harassment to rape, but because making sexual advances and other "non-abusive" forms ofharassment may not be viewed as problematic-a view possibly at odds with Title VII.
119. See Richard L. Wiener & Linda E. Hurt, Social Sexual Conduct At Work: How Do
Workers Know When It Is Harassment and When It Is Not?, 34 CAL. W.L. REV. 53 (1997)(charting differences in how men and women react to behavior that may be harassing); Weiner,supra note 69, at 635 (noting a study in which men and women are shown to interpret behavior
as harassing at very different rates).
120. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (noting that
Title VII is not a general civility code); Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7thCir. 1995) (noting that sexual harassment "is not designed to purge the workplace of vulgarity");
Rabidue v. Osceola Ref. Co., 584 F. Supp. 419, 430 (E.D. Mich. 1984), aff'd, 805 F.2d 611(6th Cir. 1986). The Rabidue court noted that:
It must never be forgotten that Title VII is the federal court mainstay in the struggle for equal employment opportunity for the female workers of America. But it isquite different to claim that Title VII was designed to bring about a magical transformation in the social mores of American workers.
Rabidue, 584 F. Supp. at 430.
121. In addition, the employer can argue that it cannot be expected to know that conduct isharassing unless the harasser knows that the conduct is harassing.
122. Of course, harassers can have strange notions of what constitutes encouragement andwelcomeness. In Brooks v. City of San Mateo, 214 F.3d 1082 (9th Cir. 2000), the court noted:
At some point during the evening, Selvaggio approached Brooks as she was taking
a call. He placed his hand on her stomach and commented on its softness and sexiness. Brooks told Selvaggio to stop touching her and then forcefully pushed him
away. Perhaps taking this as encouragement, Selvaggio later positioned himself behind Brooks's chair, boxing her in against the communications console as she wastaking another 911 call. He forced his hand underneath her sweater and bra to fondle her bare breast.
/d. at 1086. The notion that a harasser could feel encouraged by a command to stop is disturbing.
While the court's statement could be read as a tongue-in-cheek suggestion at the sheer silliness ofan argument suggesting that the plaintiff might have encouraged the conduct, the court's latersuggestions that the implications of the attack could be dealt with easily may suggest otherwise.
See id. at 1087 ("Despite the city's prompt remedial action, Brooks had trouble recovering fromthe incident."). The suggestion is that the mere fact that the harasser was fired should alleviate

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759

Lastly, unwelcomeness may reasonably be viewed from an objective
or societal perspective. Such a view would avoid the possible apportionment of Title VII liability based on an ostensibly overly sensitive
victim or an obtuse harasser. 123 From an objective perspective, certain
conduct or courses of conduct could be deemed unacceptable, and considered unwelcome, regardless of the target's actual response to the
conduct. 124 While other sexual harassment rules might render the conduct not actionable, the unwelcomeness doctrine would not. While thisapproach might cause some workplaces to lose their particular sexual
character, if that character was defined in part by sexual harassment,eliminating such workplace atmospheres would probably not be particularly problematic given Title VII's goals. 125
The reasonableness of each perspective, combined with the lack of
guidance by courts, has left the issue of perspective open. 126 For example, in Gray v. Tyson Foods, Inc., 127 the court's suggestion that a plaintiff can hide her discomfort with conduct, yet still have it viewed as
unwelcome, unabashedly suggests that unwelcomeness be viewed fromthe plaintiffs perspective. 128 However, in Meritor Savings Bank v. Vinson, 129 the Supreme Court's commentary about unwelcomeness can support viewing unwelcomeness from any perspective. 130 There, the Court
the effect of the sexual assault.
123. The offense inquiry deals with this issue as well. However, for purposes of this section,
we will explore the unwelcomeness inquiry as if the offense inquiry did not exist.
124. This does not mean conduct that is not problematic to the victim will be subject to liability. Other sexual harassment requirements ensure that the conduct complained of has actuallyharmed a plaintiff.
125. Ultimate equality may require the elimination of the harassment in all workplaces.
126. Some suggest that the issue of perspective has already been resolved. Radford, supranote 48, at 512-13. Radford notes that:
Despite the somewhat confusing 'defense' language in Vinson, the combination of
the Vinson opinion and the EEOC Policy Guidance clearly indicates that the Supreme Court and the EEOC believe that the target of sexual advances or conduct
may not successfully bring an action for sexual harassment unless she can provethat she clearly indicated to the alleged harasser the unwelcomeness of his conduct.
/d.; Weiner, supra note 69, at 626-28 (indicating that EEOC's view of unwelcomeness puts
burden on plaintiff to demonstrate unwelcomeness to the alleged harasser).
127. 46 F. Supp. 2d 948 (W.D. Mo. 1998).
128. Similarly, in Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982), the Eleventh Circuit indicated that for conduct to be unwelcome, an employee must not solicit or incite
harassment and that the employee must have been offended by the conduct. This arguably suggests that unwelcomeness is viewed from the plaintiff's perspective in that the inquiry is focusedon her and she must actually have been offended by the conduct. This could allow a plaintiff todeem the conduct involved unwelcome even though such was never indicated to the putative
harasser. Of course, the Henson court may have viewed the unwelcomeness inquiry in that caseas a timing issue, its point being that conduct may be deemed unwelcome if it occurs before thevictim has an opportunity to indicate its unwelcomeness. If that is the case, Henson provides noadditional insight on the perspective from which unwelcomeness should be viewed.
129. 477 u.s. 57 (1986).
130. Lipsett v. Univ. of P.R., 864 F.2d 881, 898 (1st Cir. 1988) (noting that Meritor "leaves
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indicated that "[t]he correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome. " 131 It
is possible that the Court meant to suggest that the plaintiff's discomfort
was a factual issue for the jury that could be proven by reference to her
conduct. 132 However, the Court's determination that the unwelcomenessinquiry could be aided by the presentation of evidence regarding "complainant's sexually provocative speech or dress" 133 suggests that unwelcomeness, as a signal to cease the conduct, should be demonstrated tothe putative harasser. 134 If so, the Court suggests that unwelcomenesscould appropriately be viewed from the harasser's subjective perspective or the perspective of a reasonable person in the harasser's position.
Though Vinson and Gray provide arguments that would allow a
court to analyze unwelcomeness from whatever perspective it favored,
the perspective from which unwelcomeness should be viewed may depend on the purpose unwelcomeness is to serve in the broader sexual
harassment inquiry. Thus, reference to other requirements of an actionable sexual harassment claim may be useful before further sketching theoutlines of the unwelcomeness inquiry.

3.

Unwelcomeness and Offense

Examining other requirements of a sexual harassment claim to determine the independent significance of the unwelcomeness requirement
used in assessing 'unwelcomeness'").
131. Vinson, 471 U.S. at 68.
132. See Burns v. McGregor Elec. Indus., Inc., 955 F.2d 559, 565 (8th Cir. 1992) (suggesting that a plaintiffs speech or dress is relevant to deciding if she viewed the conduct as unwelcome).
133. Vinson, 477 U.S. at 69.
134. This aspect of the Court's decision has been widely criticized. See, e.g., Benedet, supra· note 61, at 142-45 (discussing the use of dress and demeanor to determine unwelcomeness); Bull,
supra note 21, at 134-35 (noting generally that much seemingly irrelevant information has been
admitted as relevant to the unwelcomeness issue); Juliano, supra note 63, at 1587-90 (assessing
the use of dress, speech and demeanor to determine unwelcomeness); Radford, supra note 48, at
505-06 (suggesting the inappropriateness of using speech, dress and demeanor to determine
unwelcomeness). However, the Federal Rules of Evidence may soften the effect of the Court's
decision. See Socks-Brunet v. Hirschvogel, Inc., 184 F.R.D. 113, 119 (S.D. Ohio 1999)("While relevant evidence is generally admissible under Federal Rule of Evidence 403, evidence
subject to Rule 412 is presumptively inadmissible, even when offered to disprove 'unwelcomeness' in a sexual harassment case."); Barta v. City & County of Honolulu, 169 F.R.D. 132, 137(D. Haw. 1996) (disallowing discovery of evidence of plaintiffs sex life); Weiner, supra note
69, at 637-38 (noting that the revised Rule 412 of the Federal Rules of Evidence can stop theadmission of the most problematic evidence); see also Monnin, supra note 78 (analyzing theinterplay between sexual harassment and Federal Rule of Evidence 412). Unfortunately, theCourt's decision may have other effects when courts allow defendants to probe sexual backgrounds. See Sanchez v. Zahibi, 166 F.R.D. 500, 503 (D. N.M. 1996) (allowing limited discovery of past sex-related activity even in the face of Federal Rule of Evidence 412); Oshige, supranote 67, at 581 (noting that a defense counsel's ability to probe to prove welcomeness may deter
plaintiffs from filing meritorious harassment claims).

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is advisable before constructing the content of the unwelcomeness inquiry. Actionable hostile work environment harassment must be subjectively offensive to a plaintiff and objectively offensive to a person inplaintiffs position. 135 As the Supreme Court has noted:
Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environmentthat a reasonable person would find hostile or abusive-is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct
has not actually altered the conditions of the victim's employment, and there is no Title VII violation. 136
That both offense and unwelcomeness are independently required suggests that they should be viewed independently.
Though both the unwelcomeness and offense requirements focus on
harm or discomfort to the plaintiff, unwelcome conduct and offensive
conduct are not coextensive. Assume that an employee makes a sexual
advance toward a co-worker in a particularly inappropriate manner.
The style of the advance, and hence the advance itself, may be offensive even if the sentiment underlying the advance, and therefore theadvance itself, was arguably not unwelcome. Conversely, an advance
may be inoffensive, but undoubtedly unwelcome, whether the subject isinterested in the propositioner or not. 137 Assume one co-worker sends adozen red roses to the office of her co-worker with whom she is having
a personal relationship. The gesture, particularly if seen by others, may
be unwelcome, though not offensive, because the discreet nature of therelationship was highly prized by the recipient of the roses. Thoughsubjective offense and welcomeness can cover different ground, 138 they
are sufficiently related to be considered redundant in many situations. 139
135. See Dey v. Colt Const. & Dev. Co., 28 F.3d 1446, 1456-57 (7th Cir. 1994) (describing
objective offense).
136. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993).
137. Imagine that a boyfriend sends a scantily clad male dancer to his girlfriend's office todeliver a strip-o-gram proposing marriage. Even if the girlfriend wants to marry her boyfriend,
the strip-o-gram may be unwelcome for at least three reasons. First, the girlfriend may object toreceiving strip-o-grams. Second, the girlfriend may not want to receive strip-o-grams at work.
Third, the girlfriend may want to keep her private life completely separate from her work life
such that no workplace intrusion of this or any other personal type is welcome. While the strip-ogram may not be welcome, it may not be offensive. Conversely, the strip-o-gram may be welcome in that the sentiment underlying the strip-o-gram may be welcome, while the strip-o-gram
itself may be offensive.
138. Benedet, supra note 61, at 134 ("[O]bjectively severe or pervasive sexual harassment is
considered potentially consistent with welcomeness."); Monnin, supra note 78, at 1165 (notingthat conduct can be "offensive or undesirable to the plaintiff, yet nonetheless 'welcomed' by her
in the eyes of her harasser").
139. Susan Estrich, Sex at Work, 43 STAN. L. REV. 813, 833 (1991). Estrich stated that:the welcomeness inquiry is either utterly gratuitous or gratuitously punitive. It is

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However, unless unwelcomeness is to be of extremely limited utility, it
must serve a purpose as independent of subjective offense as possible.
Viewing unwelcomeness from the plaintiff's perspective nearly
eliminates the unwelcomeness requirement's effect. While it is possiblethat a plaintiff may be subjectively offended by welcome conduct, such
would seem to be a very narrow and arguably confusing use of unwelcomeness. Conversely, viewing unwelcomeness from the putative harasser's perspective affords the unwelcomeness requirement a greater
impact by describing a broader, though still narrow set of cases (i.e.,
one in which the harasser believes objectively offensive conduct to bewelcome). Though reasonable arguments exist to view unwelcomenessfrom any perspective, the unwelcomeness inquiry would seem to haveits greatest practical import and significance when viewed from the harasser's subjective perspective or possibly from that of a reasonable
person in the harasser's position.
C.

Assessing UnwelcomenessBased on the theories underlying unwelcomeness-that conduct may
be welcome to one person, but unwelcome to another, 140 and that conduct must be unwelcome to cause harm-the unwelcomeness requirement is best conceived as requiring that the putative harasser know orshould have known that the potentially harassing conduct was unwelcome before it is deemed unwelcome. This construction of the requirement guarantees that harm to the plaintiff occurred-though it is underinclusive of situations where harm has occurred-because there will belittle reason for the harasser to know that the conduct was unwelcome
unless the conduct was actually unwelcome to the plaintiff, and guarantees that the putative harasser has notice that the conduct was problematic. Once the putative harasser knows or should have known that the
conduct is harassing and unwelcome, the continuation of the conduct isnecessarily harassing, and is actionable if the employee's terms of employment are actually or constructively altered as a result. Conversely,
if the harasser had reason to be unclear that the potentially harassing
conduct was unwelcome-possibly because the conduct was welcomethe continuation of the conduct might not lead to harm, and the putative
gratuitous when the environment is not proven objectively to be hostile, because an
unwelcome environment which is not objectively hostile does not give rise to liability in any event. It is gratuitously punitive if the environment is found objectively
hostile, for in that case the employer can nonetheless escape the burden of addressing the issue, by portraying this particular woman as so base as to be unworthy ofrespect or decency.
!d.; Nejat-Bina, supra note 65, at 347 (suggesting that the unwelcomeness requirement is superfluous).
140. See supra notes 71-72.

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harasser's conduct would not be deemed actionable.
While this formulation of the unwelcomeness requirement is reasonable given that the requirement must have some content, it is stilltroubling. When the unwelcomeness inquiry is viewed in this way, it
appears to protect the conduct of a putative harasser who may have mistakenly not realized that his conduct was unwelcome (e.g., if the subject of the conduct did not react to the conduct or reacted to it with silence). Allowing the harasser's mistake to shield the employer fromliability treats sexual harassment somewhat similarly to rape. Although
the Supreme Court, in Meritor Savings Bank v. Vinson, 141 noted specifically that the consent inquiry in a rape case and the welcomeness inquiry in a sexual harassment suit are different, 142 they bear an uncomfortable similarity. 143 In neither rape nor sexual harassment cases is
proof that sex or sex-based conduct occurred proof of harm, because
the sexual conduct ostensibly can be consensual. Both voluntariness andunwelcomeness focus on consent. Indeed, the Vinson Court nearly said
as much, even as it denied that the inquiries were identical. 144 Thus,
unless the unwelcomeness requirement is applied carefully, some of the
problems attending the consent inquiry in rape cases will attend theunwelcomeness inquiry in sexual harassment cases. 145
However, no matter how it is structured, an unwelcomeness requirement will put the burden of proving unwelcomeness on the plaintiff and create the presumption that sex-related workplace conduct is not
unwelcome until proven otherwise. 146 That presumption suggests either
141. 477 u.s. 57 (1986).
142. That sex can be consensual vis-a-vis a rape prosecution does not mean that the sexual
advances that preceded it were welcome in the employment context. See Vinson, 477 U.S. at 68("The correct inquiry is whether respondent by her conduct indicated that the alleged sexual
advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.").
143. Benedet, supra note 61, at 126 ("Such an inquiry reveals several parallels between theapproach of courts to sexual harassment claims and their traditional treatment of the criminal
offense of rape."); Estrich, supra note 139, at 815. Estrich states that:
These very same doctrines, unique in the criminal law, are becoming familiar tools
in sexual harassment cases. The rules and prejudices have been borrowed almost
wholesale from traditional rape law. The focus on the conduct of the woman-her
reactions or lack of them, her resistance or lack of it-reappears with only the mostminor changes.
!d.; Juliano, supra note 63, at 1576-77 ("The factors considered bear a striking resemblance tofactors formerly considered in rape cases."); Radford, supra note 48, at 516 (noting that courts
following Vinson seem "to require nothing less than a clear and adamant 'no' on the plaintiff'spart before believing that her communication of unwelcomeness was unambiguous").
144. Vinson, 477 U.S. at 69 ("While 'voluntariness' in the sense of consent is not a defense
to such a [sexual harassment] claim, it does not follow that a complainant's sexually provocative
speech or dress is irrelevant as a matter of law in determining whether he or she found particularsexual advances unwelcome.").
145. See Estrich, supra n01e 139, at 833.
146. Benedet, supra note 61, at 132 (suggesting the existence of a presumption of consent toharassment in sexual harassment cases); Nejat-Bina, supra note 65, at 346 ("The presumption of

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that a factfinder should believe that sex-based conduct in the workplaceis actually welcome until proven otherwise, or that a sexual harassment
case has not been proven unless the subject conduct is proven to be unwelcome. These meanings are somewhat related because placing theburden to prove that sex-based workplace conduct is unwelcome on theplaintiff is more sensible if courts believe that most in society believethat sex-based workplace conduct is generally not unwelcome unlessplaintiff indicated such to the putative harasser. 147 Conversely, presuming that potentially harassing conduct is unwelcome unless the plaintiff
initiated or encouraged the conduct at issue, or that the unwelcomenessinquiry be limited to those situations where the conduct at issue was
openly welcome, may be just as reasonable. 148 That is, a presumption of
unwelcomeness could follow proof of objectively offensive sex-based
workplace conduct. 149 Nonetheless, courts have noted that proving unwelcomeness is part of the plaintiff's prima facie case. 150
Though no one wants to be harassed, 151 particularly given that acwelcomeness unfairly burdens victims; instead, the presumption should be that sexual conduct atwork is unwelcome."); Oshige, supra note 67, at 590-91 (suggesting that welcomeness be anaffirmative defense, rather than part of the plaintiff's proof); Vhay, supra note 15, at 344 ("Welcomeness in this context is most analogous to a justification for the defendant's act . . . . The
plaintiff should not bear the burden of rebutting the defendant's affirmative defense in her prima
facie case.").
147. Unfortunately, the lack of clarity regarding the interpretation of unwelcome conduct may
lead to the result that how the unwelcomeness inquiry ends may depend on where it starts. If sexbased conduct is presumed unwelcome, more conduct will tend to be viewed as unwelcome regardless of the standard used to determine unwelcomeness. Similarly, if conduct is presumed
welcome, more conduct will tend to be viewed as welcome regardless of the standard used todetermine unwelcomeness.
148. Benedet, supra note 61, at 166 ("The idea of welcomeness is wholly inapplicable incases where the conduct is not specifically solicited."); Mary Jo Shaney, Note, Perceptions of
Harm: The Consent Defense in Sexual Harassment Cases, 71 IOWA L. REV. 1109, 1112 (1986)(suggesting that welcomeness "focus on whether the victim overtly consented to the sexual conduct rather than on whether the victim resisted a harasser's behavior").
149. Seemingly, this would be the tack taken if unwelcomeness were required in racial harassment cases. Potentially harassing race-based conduct would be assumed unwelcome unlessproven otherwise. q. L. Camille Hebert, Sexual Harassment is Gender Harassment, 43 U. KAN.
L. REV. 565, 577 (1995) (noting that unwelcomeness is generally presumed outside of the sexual
harassment context).
150. See, e.g., Splunge v. Shoney's, Inc., 874 F. Supp. 1258, 1270 (M.D. Ala. 1994).
151. Some have suggested that sexual harassment, by definition, is always unwelcome. Carrv. Allison Gas Turbine Div., 32 F.3d 1007, 1008 (7th Cir. 1994) ("'Welcome sexual harassment' is an oxymoron."). While this is certainly true once conduct is defined as sexual harassment, particular conduct may be harassing or not depending on context. Some conduct that could
be deemed harassment could also be viewed as welcome in another context, even among the same
participants. For example, if an employee has a sexual relationship with his boss, we can assume
that sexual foreplay may occur in private, and may be welcome. This is so even if the subordinate employee views sexual foreplay as unwelcome when his boss/girlfriend attempts foreplay atwork.
It is possible that a court would not consider such foreplay as unwelcome by virtue of thepreexisting relationship between the boss and the subordinate. Because the definition of unwelcome requires that conduct not be incited or invited, it may be that conduct of a sexual nature
between certain people should never be considered unwelcome. At some point, this cannot be2002]

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tionable harassment entails the discriminatory provision of terms, conditions, or privileges of employment, whether someone is deemed tohave been harassed depends, in part, on whether they appear to haveacquiesced to the potentially harassing conduct. 152 When proving thelack of acquiescence becomes the key to recovery, employees become
fair targets for gender-motivated conduct until putative harassers are
told their conduct is unwelcome. This is problematic because, althoughsexual advances can be welcome in some contexts, 153 the suggestion that
sex-based or gender-motivated conduct in the workplace should be considered welcome until the employee subjected to those advances objects
may not be a reasonable one.
The conduct that Amanda and Becky faced in our hypothetical situation raises just such problems. Though Amanda and Becky appear to
face a workplace in which it is more difficult to get their jobs done because of their gender, they will need to confront the unwelcomenessrequirement and its need for notice to the putative harasser. Regardlessof whether X:YZ's workplace constitutes an actionable hostile work environment, whether the answer should depend on whether the conduct isdeemed unwelcome is the issue. As noted above, the unwelcomenessrequirement is problematic even as it applies to face-to-face sexual harassment consisting largely of sexual advances and requests for sex.
However, as sexual harassment moves farther away from its traditional
sex-based moorings and toward a gender-based outlook, the unwelcomeness requirement may become more difficult to apply to the kindof conduct that may cause harm similar to that in Becky's andAmanda's cases. Thus, the question is: Does the unwelcomeness requirement continue to serve any appropriate function in the evolving
sexual harassment inquiry?
IV. UNWELCOMESNESS AND SEXUAL HARASSMENT
When sexual harassment was first made cognizable and was thoughtlargely to comprise sex-based conduct, requiring that sexual harassment
be unwelcome stemmed from the notion that potentially harassing conduct might be enjoyed by employees, and therefore might not cause
Title VII harm. 154 However, the unwelcomeness requirement fits rather
uneasily with current sexual harassment law and its applicability to alltrue, as even sexual relations between married partners can become marital rape.
152. See Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986); Bull, supra note 21, at 118.
153. See Nejat-Bina, supra note 65, at 349 (noting that some have suggested that workplace
conduct of a sexual nature may be welcome); see also Fremling & Posner, supra note 74, at
1081 (noting that the workplace is an increasingly important site for courtship as most womenare now entering the workforce before marriage).
154. See Benedet, supra note 61, at 144-45; Bull, supra note 21, at 124.

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gender-based conduct that can support sexual harassment claims. As
gender harassment has become clearly actionable, sexual harassment
law may have outgrown the unwelcomeness requirement.

A.

Unwelcomeness and Quid Pro Quo Sexual Harassment

In quid pro quo harassment cases, the unwelcomeness requirement
is largely irrelevant. Recent Supreme Court cases have made it clearthat quid pro quo harassment requires that actual job detriment result
directly from sexually harassing conduct. 155 Unless it causes actual job
detriment, sexually harassing conduct, including a threat conditioning
job benefits on acquiescence to harassment, is insufficient to support aquid pro quo case. 156 Were a supervisor to tell a subordinate, "Youmust have sex with me or you will be fired," the threat alone would notsupport a quid pro quo case until the subordinate was fired or sufferedsome other actual job detriment. 157 Though requiring unwelcomenessmay have seemed sensible when quid pro quo harassment encompassed
the conditioning of job benefits on sex and like conduct 158-a situationin which the trade and the underlying conduct could, under limited circumstances, have been viewed as welcome-it makes little sense today
given that quid pro quo harassment focuses on actual job detriment inflicted as a result of a refusal to acquiesce to sexual harassment. 159
Constructing a scenario in which welcome conduct creates actual
job detriment may be impossible. The closest scenario would seem tobe one in which the continuation of conduct, which at one point waswelcome, is made a term of employment, and then causes actual job
detriment to the employee when the employee refuses to acquiesce inthe continuation. For example, assume that an employee who previously had a voluntary and consensual affair with his boss is fired forrefusing to continue the affair. If the result of the refusal to continue
the conduct results in job detriment, either the conduct or the conditioning of continued employment on continuing the conduct would seem tohave necessarily been unwelcome at the time the condition was placedon continued employment. Even if one argues that the harasser musthave notice of the unwelcomeness, the refusal to continue the affair
would seem to qualify as notice of unwelcomeness. Were the conduct
155. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753 (1998).
156. Ellerth, 524 U.S. at 754.
157. /d.
158. See Bryson v. Chicago State Univ., 96 F.3d 912, 915 (7th Cir. 1996) (suggesting thatthe conditioning of job benefits on sex was sufficient for quid pro quo case); Karibian v. Columbia Univ., 14 F.3d 773 (2d Cir. 1994); Kauffman v. Allied Signal, Inc., 970 F.2d 178, 186 (6thCir. 1992) (suggesting that conditioning of benefits on sexual harassment is sufficient for quid
pro quo case).
159. See Ellerth, 524 U.S. at 754.

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767

welcome, the employee would presumably have engaged in the required
conduct, particularly since his job was the cost of noncompliance. 160
Whether the harassing conduct would have been welcome had it notbeen tied to job detriment surely cannot matter to whether a quid proquo claim exists. 161 The fact that potentially harassing conduct was welcome in the past cannot mean it continues to be welcome even though it
leads to actual job detriment. 162 Rather, potentially harassing conduct
would always seem to be potentially unwelcome, and arguments that the
conduct was welcome in the past should be largely irrelevant to determining whether it was welcome at the time it precipitated the actual job
detriment. It appears impossible for a quid pro quo claim to be predicated solely on welcome conduct, because the nature of a quid pro quo
claim is such that when quid pro quo harm (i.e., actual job detriment)
occurs, no argument exists that all of the conduct underlying the claim
was welcome.
Applying the unwelcomeness requirement to Becky's situation in
our hypothetical suggests the requirement's irrelevance to, or the factthat unwelcomeness always exists in, quid pro quo cases. Becky's quid
pro quo claim could be based on the notion that she was denied a promotion, and the pay raise that came with it, because of her refusal toaccept and participate in the sexually harassing atmosphere. Because
her refusal to participate in the workplace atmosphere was recognized
and used in part to deny her the promotion, even a strict standard ofunwelcomeness requiring notice would seem to have been met in160. Cf. Bull, supra note 21, at 124. Bull states that:
The Meritor standard is premised on a notion of welcomeness, that women welcome certain behavior by dressing or talking a certain way. While this logical inference might make sense to some in the context of a hostile environment claim, it
is untenable in the context of quid pro quo harassment. Clearly, no woman intentionally provokes losing her job.
/d.; Nejat-Bina, supra note 65, at 329 ("[I]n a quid pro quo case, a supervisor's sexual request is
implicitly unwelcome and unwelcomeness is not a key element.").
161. Were the mere conditioning of job benefits on harassment still considered to be quid proquo harassment, one could argue, rather weakly, that requiring that an employee acquiesce tosomething that is not unwelcome does not cause any harm, and therefore should not be sanctioned as sexual harassment. However, since the mere conditioning of job benefits on sexual
harassment (i.e., unfulfilled threats, does not amount to quid pro quo sexual harassment thatargument is no longer available). Ellerth, 524 U.S. at 754.
162. This argument is distinct from one that suggests that previously welcome conduct may
not appear harassing precisely because it had previously been welcome. Assume that an employee
who has historically been willing to plan office parties is now required to plan such parties.
When she refuses, she is demoted. That the employee had no complaints about voluntarily planning such parties before does not mean that being required to plan parties is not unwelcome. The
refusal to plan the parties suggests unwelcomeness. However, that the employee does not welcome being required to plan parties does not mean that the requirement is harassment; it may
simply be annoying. See Galdieri-Ambrosini v. Nat'l Realty & Dev., 136 F.3d 276 (2d Cir.
1998) (noting that assignment of secretarial tasks is not gender-related discrimination when thesecretary is the person assigned tasks and there is no indication that male secretaries would havebeen treated differently).

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Becky's situation. Of course, an employer hardly needs notice that conduct leading to an adverse job action is unwelcome. This analysis, ofcourse, relates only to the unwelcomeness question, and would not affect XfZ's argument that the conduct Becky endured was not genderbased harassment.

B.

Unwelcomeness and Hostile Work Environment Harassment

The interplay between hostile work environment harassment andunwelcomeness is more complicated than that between unwelcomenessand quid pro quo harassment. The lack of a requirement of actual job
detriment in the hostile work environment area makes the application of
the unwelcomeness requirement to hostile work environment harassment somewhat different. 163 As there need not be an adverse job actionin the hostile work environment context, there need not be a refusal toacquiesce to harassment that necessarily creates notice of unwelcomeness, or any particular action by a supervisor that would be unquestionably unwelcome to all employees. Consequently, a hostile work
environment may exist without notice being provided to the putative
harasser or the employer that conduct is unwelcome.
Over time, the hostile work environment claim has changed somewhat as non-sexual gender-based conduct has grown in importance insupporting hostile work environment claims. 164 As the style of conductthat may support a hostile work environment claim has broadened,
workplace situations yielding hostile work environment claims may notappear as egregious as in earlier cases like Vinson. This can cause
problems because the unwelcomeness requirement may appear to require that courts ignore conduct deemed not unwelcome when determining whether a hostile work environment has been proven.
The type of conduct that may support a hostile work environment
claim can be of a different nature than that which has historically supported a quid pro quo claim. The nature of the conduct supporting a163. See Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986). Meritor Savings Bank is the casein which the Supreme Court first recognized the hostile work environment claim was groundedon sex-based conduct. ld. Had the sex-based conduct alleged in Vinson-sexual advances, sexual
propositions and sexual activity-somehow been actually welcome and no job detriment occurred,
no Title VII claim would have been cognizable, because the situation would have presumably
amounted to consensual sexual activity in the workplace having little or no bearing on plaintiffs
employment. ld. at 68. Applying the unwelcomeness requirement seemed no less appropriate in
the hostile work environment area than in the quid pro quo area, though the Supreme Court's
suggestion that the plaintiffs dress was relevant to whether the conduct was unwelcome, andtherefore supported a hostile work environment claim, may have been inappropriate. See id. at69.
164. See, e.g., Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla.
1991) (allowing impersonal harassment through calendars, magazines and other media to support
a hostile work environment claim).

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769

prototypical sex-based quid pro quo case may afford a visceral responseof unwelcomeness that has no parallel with respect to conduct that may
support gender-based hostile work environment cases. Though Title VII
harm may exist in either case, there is a difference between a demand
to have sex with one's boss on pain of losing one's job, and constantgender-based joking and non-physical harassment at the hands of one's
co-workers. 165 If, to be deemed unwelcome, conduct underlying a hostile work environment claim must elicit a visceral response of unwelcomeness similar to that which one would expect to accompany conduct
supporting a quid pro quo case, the unwelcomeness requirement may be
an inappropriate part of the hostile work environment landscape, because conduct that may be deemed not unwelcome may actually help
create a work environment that causes Title VII harm, whether it iscredited with doing so or not.
This problem is even larger given that a hostile work environment
need not literally be hostile to support a hostile work environment
claim. A hostile work environment claim exists whenever an employee's terms of employment have been constructively altered by harassment because of her gender. 166 This may occur when a workplace ishostile, abusive, or of such a nature that it causes an employee to havean unreasonably more difficult time doing her job or advancing becauseof her gender. 167 For example, in Harris v. Forklift Systems, Inc., 168 theplaintiff claimed that the company owner's conduct toward her andother female workers in the office created a hostile work environment.169 The owner's conduct included requiring female workers to retrieve coins from his pocket, implying that plaintiff had promised sex toa customer to close a deal, and suggesting that the plaintiff go to a motel to negotiate a raise with him. 170 Even though the plaintiff only
claimed that she had suffered some, though not necessarily severe, psychological harm, the owner's conduct was deemed sufficient to support
a hostile work environment claim. 171 The harm of hostile work environment harassment can be the toll that such harassment takes on an
165. However, conduct may be harassing whether it would be viewed as mild in isolation andtherefore not actionable, or severe in isolation and possibly actionable. Whether workplace conduct demonstrates that an employee is seen merely as a sex object, or as a subject of ridicule
because of her sex, or as a member of a gender that is the subject of ridicule, it may create ahostile work environment if it is sufficiently severe or pervasive. See Nejat-Bina, supra note 65,
at 349-50 (noting that seemingly harmless request for a date can suggest to employee that she ismerely a sex object).
166. See Ellerth, 524 U.S. 742 (1998).
167. See discussion supra Part II.B.
168. 510 u.s. 17 (1993).
169. /d.
170. /d. at 19.
171. /d. at 23 ("The effect on the employee's psychological well-being is, of course, relevant
to determining whether the plaintiff actually found the environment abusive.").

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employee's psyche, or any detrimental impact on the employee's workor working conditions. 172 Indeed, physical stress and mental distress,
rather than actual job detriment, can be the only demonstrable effects ofhostile work environment harassment. 173 While the conduct in Harris
was crude, one could argue that it was potentially not unwelcome, depending on the workplace in which the conduct occurred, or at least as
welcome as conduct that other courts have deemed welcome. 174 The
conduct Ms. Harris endured was treated as unwelcome, and she was not
required to react as negatively as we would expect her to act to quid
pro quo propositioning, though a clear visceral response might havebeen appropriate. 175 However, the issue is not fully resolved. The unwelcomeness requirement may still require some response unequivocally indicating unwelcomeness before such conduct is deemed unwelcome. This is troubling because subtle gender-based conduct that may
help create a workplace atmosphere may not yield, or appear to warranta strong response, or any response at all.
The fundamental problem underlying the interplay between unwelcomeness and hostile work environment harassment is that all workplace conduct is a part of the workplace atmosphere, whether such conduct elicits any response at all, or is deemed welcome or unwelcome.
The concerns underlying unwelcomeness-proof of harm and notice tothe harasser-are arguably irrelevant to many hostile work environment
claims that focus on the workplace atmosphere and its effect on a plaintiffs ability to do her job, or to advance in her job. Whether one feels
sufficiently harassed to complain may have little to do with whether itis actually more difficult to do one's job because of one's gender. The
unwelcomeness requirement must be able to be appropriately applied to
all types of conduct that can support hostile work environment claims toremain relevant. If the unwelcomeness requirement cannot be so applied, the old vision of unwelcomeness must yield to the new vision of
hostile work environment.

1.

Hostile Work Environment Harassment and Undirected
Conduct

A workplace atmosphere can be shaped, in part, by conduct not directed at any particular person, such as the posting of material in theworkplace. 176 Thus, posting offensive gender-related material, such as
172. /d. at 22.
173. See Chambers, supra note 6, at 1631.
174. Courts have found much more egregious conduct welcome. See supra notes 88-95 andaccompanying text.
175. Harris, 510 U.S. 17 (1993).
176. See, e.g., Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla.

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pinups, sexist commentary about the role of women in the workplace,and graffiti, would seem to shape the workplace atmosphere, and might
help create a hostile work environment. 177 Requiring notice of the conduct's unwelcomeness is problematic.
One issue is whether such conduct should be considered directed ateveryone or no one. 178 If posted material is deemed to be directed ateveryone, the unwelcomeness inquiry may be simplified, but might also
be misguided. There may be little reason to believe that material posted
inside one's workspace is directed at everyone unless the person posting
the material intends it to be. For example, when material is posted inside someone's office, that material may be directed only at the individual who posts it in the same way that the display of pictures of one's
family can be directed solely at the individual in whose office the pictures sit. That co-workers may be able to see the material may suggestthat the material impacts the workplace atmosphere, but it hardly meansthat the material was actually directed at everyone. 179 Conversely, if the
conduct is considered literally to be directed at no one, complaining
about it-the mechanism that would provide notice-would make little
sense. In order for the unwelcomeness requirement to serve its function, the conduct would seem required to be treated as if it were directed at everyone, or at least at anyone who sees the material, even if
it actually is not. 180
Unless the person posting the material should have known of its
unwelcomeness without being told, the putative plaintiff would need totell the putative harasser that the posted material is unwelcome in orderto have it support a hostile work environment claim. 181 Merely notingthat the material could be offensive to some would not be sufficient toprovide notice that the plaintiff viewed the material as unwelcome. 182
This specific notice would be necessary because material can be welcome or unwelcome to a particular employee depending on that em1991) (noting that pinups and other ostensibly non-directed conduct can create hostile work
environment); see also Balkin, supra note 21, at 2297 (noting that conduct that can help create ahostile work environment can be directed at a particular employee or no one at all); Christopher
M. O'Connor, Note, Stop Harassing Her or We'll Both Sue: Bystander Injury Sexual Harassment, 50 CASE W. RES. L. REV. 501, 521-25 (1999) (noting that undirected conduct, including
obscene pictures, can be the basis for Title VII claims).
177. See Robinson, 160 F. Supp. at 1495 (detailing workplace conduct including defacementof work equipment and gender-based graffiti).
178. Indeed, one commentator has suggested that actionable harassment be limited to conduct
directed at someone. See Eugene Volokh, What Speech Does "Hostile Work Environment" Harassment Law Restrict?, 85 GEO. L.J. 627 (1997).
179. See Balkin, supra note 21, at 2316 (discussing non-directed conduct and distinguishingspeech for public consumption by the workplace masses and speech not for such consumption).
180. However, even those who do not see the material may be affected by its existence if
information about the posted material is discussed in the workplace.
181. See Notice in Hostile Environment Discrimination Law, supra note 36, at 1977-82.
182. See id.

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ployee's reaction to it. However, whether or not the plaintiff alerts theputative harasser of the material's unwelcomeness, the posted material
may still help create the workplace atmosphere and can help explain
why it was more difficult to succeed in her job. Thus, the conduct
should almost certainly be relevant to prove whether the workplace atmosphere amounts to a hostile work environment. 183
Whenever conduct that is not complained about cannot be used tosupport a hostile work environment claim, a court or jury reviewing asexual harassment case centered on that workplace's atmosphere does
so based on incomplete material about the plaintiff's working conditions. Conversely, allowing conduct that has not been deemed unwelcome to support a hostile work environment claim, while sensible, effectively eliminates the unwelcomeness requirement. This clash may
make eliminating the unwelcomeness requirement, as it applies to undirected conduct, sensible.
Applying the unwelcomeness requirement in this context presents
plaintiff with an unpalatable choice: either complain about every bit ofunwelcome conduct in the workplace or risk that such conduct will bedeemed welcome and unable to support a hostile work environment
claim. The first choice places a large onus on the plaintiff and raises
the practical problem that the plaintiff is required to inform the harasserof discomfort with conduct that may be considered personal and not
directed at the plaintiff. Given that single incidents are very rarely sufficient to constitute hostile work environment harassment 184 and the employer will often have an affirmative defense that may stop suits basedon single instances of harassment, 185 complaining about single incidents
of potentially harassing conduct amounts to complaining about conductthat does not constitute actionable harassment. Complaining about suchconduct, if it is viewed as insubstantial, can be quite risky. Such complaints may lead to unsavory situations such as being treated as an outcasrt86 or as an overly sensitive inflexible person who cannot deal with
183. See FED. R. Evm. 401 ("'Relevant evidence' means evidence having any tendency tomake the existence of any fact that is of consequence to the determination of the action moreprobable or less probable than it would be without the evidence.").
184. On occasion, single incidents might support liability. See Torres v. Pisano, 116 F.3d
625, 631 (2d Cir. 1997); Daniels v. Essex Group, Inc., 937 F.2d 1264, 1274 n.4 (7th Cir.
1991); Todd v. Ortho Biotech, Inc., 175 F.3d 595, 599 (8th Cir. 1999) (R. Arnold, J., concurring in judgment).
185. As noted below, the affirmative defense stemming from Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), requirethat in most situations, the employer be required to have notice of prior harassment before it canbe held liable for a hostile work environment.
186. See Brooks v. City of San Mateo, 214 F.3d 1082, 1087 (9th Cir. 2000) (noting plaintiff's complaint that she was ostracized after reporting harassment); Parkins v. Civil Constructorsof III., Inc., 163 F.3d 1027, 1031 (7th Cir. 1998) (complaining that ostracism was the result of areport of sexual harassment).

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diverse people. Indeed, forcing a plaintiff to complain about conduct
before it amounts to actionable harassment may be as likely to guarantee that the conduct is never the subject of complaint as it is to encourage it to be the subject of complaint. 187
We may consider Amanda's situation in our hypothetical. Requiringthat Amanda complain about the posted material in her co-workers'
semi-private office space or lose the ability to present such conduct in a
hostile work environment case is a problematic choice. Amanda must
make her decision whether to complain knowing that complaining will
make her seem unable to get along with others-precisely the reason
used to refuse to promote Becky. Though complaining may stop the
posting of material, it may trigger unpalatable, but non-actionable conduct toward Amanda and end any chance that she may have to become amanager. 188

2.

Conduct Directed at Those Other Than Plaintiff

Like undirected conduct, conduct directed at those other than theplaintiff can help shape a workplace atmosphere that may yield a hostilework environment claim. 189 By infecting the workplace with gender bias
or gender-based hostility, conduct directed at those other than plaintiff
may create an environment that is hostile, abusive, or more difficult toadvance in because of gender. More specifically, conduct directed atothers may yield a hostile work environment when either sexual favoritism or third-party harassment has occurred. 190 It is unclear that the un187. In addition, it is difficult to believe that the Supreme Court wants employees to complain
about every incident that could support a hostile work environment claim. See Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80 (1998) (noting that Title VII is not a civility code).
188. To be clear, I am not referring to retaliation, but to ostracism and beliefs about
Amanda's personality that may make her advancement more difficult. See, e.g., Campbell v.
Fla. Steel Corp., 919 S.W.2d 26, 29 (Tenn. 1996) (describing ostracism that accompanied harassment complaint).
189. See Howard v. Burns Bros., Inc., 149 F.3d 835, 838 (8th Cir. 1998) (noting that harassment of other employees can "be relevant to show pervasiveness of the hostile environment");
Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (lOth Cir. 1987) ("The second question iswhether incidents of sexual harassment directed at employees other than the plaintiff can be usedas proof of the plaintiff's claim of a hostile work environment. The answer seems clear: one of
the critical inquiries in a hostile environment claim must be the environment."); Van Jelgerhuis
v. Mercury Fin. Co., 940 F. Supp. 1344, 1359 (S.D. Ind. 1996) ("Courts may consider third
parties', or co-plaintiff's, impressions of and experiences in a work environment when a plaintiff
maintains she was aware of defendant's sexual harassment of other employees in a workplace.");Leibovitz v. New York City Transit Auth., 4 F. Supp. 2d 144, 150-51 (E.D.N.Y. 1998) (notingthat workplace environment is created by action that may not be directed at the plaintiff);
O'Connor, supra note 176, at 509-12 (citing cases in which courts have recognized the cognizability of bystander claims).
190. Cf. O'Connor, supra note 176, at 517-18 (citing Rogers v. EEOC, 409 U.S. 1059
(1972), a case in which racial harassment of customers was used to support an employee's hostilework environment claim, and noting that bystander injury claims have been imbedded in racialhostile work environment claims since hostile work environment claims were first recognized).

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welcomeness of the conduct does or should matter in either of thesesituations.
Though individual instances of sexual favoritism are not actionable, 191 rampant sexual favoritism in the workplace can create a hostilework environment when those affected by the favoritism suffer. 192 To
whom the favoritism is directed is unimportant; that it created an atmosphere in which sexual availability was linked to advancement andother terms of employment is. 193 When a pattern develops such that it isclear that employees who advance are those who are or have been the
supervisor's paramours and the advancement is related to the relationship, a hostile work environment may exist. 194 Attempts to apply theunwelcomeness inquiry to sexual favoritism to make sure that the unwelcomeness requirement is honored are fruitless. Applying it to thesubject of the favoritism seems pointless, as that employee may welcome the favoritism or the underlying conduct or both. Additionally,
whether the subject welcomes the sexual favoritism is irrelevant towhether the conduct has created a hostile environment for others. 195 The
favoritism itself and the message it sends about the workplace may besufficient to support a hostile work environment claim. 1%
Likewise, applying the unwelcomeness inquiry to the plaintiff (i.e.,requiring that plaintiff complain) appears pointless. The plaintiff would
surely find the favoritism unwelcome because his job prospects were
harmed by the conduct. In this way, the plaintiff in a sexual favoritism
case can be likened to a quid pro quo plaintiff who may not have foundthe underlying harassing conduct unwelcome, but certainly found the191. See Hentosh v. Herman M. Finch Univ. of Health Sciences., 167 F.3d 1170, 1175 (7thCir 1999); Elger v. Martin Mem'l Health Sys., Inc., 6 F. Supp. 2d. 1351, 1353-54 (S.D. Fla.
1998); Keenan v. Allan, 889 F. Supp. 1320, 1375 n.66 (E.D. Wash. 1995) (listing numerous
cases).
192. Even though providing benefits to paramours is not generally considered sexual harassment, the EEOC has recognized that where such conduct fully infects the workplace ethos, ahostile work environment may exist. See EEOC: Policy Guide on Employer Liability for Sexual
Favoritism Under Title VII, 8 Lab. Rei. Rep. (BNA) 405:6817, at 405:6819 (EEOC Notice No.
915-048 (Jan. 12, 1990)). The EEOC Policy Guide states that:If favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment in violation of Title VII regardless of whether
any objectionable conduct is directed at them and regardless of whether those who
were granted favorable treatment willingly bestowed the sexual favors.
/d.

193. /d.
194. If it was made clear that the only people who would get promotions in a particular office
were those who had dated supervisors, a problem would exist. While such behavior would be
insidious, more innocuous behavior could be a problem as well. Indeed, depending on the context, the mere request for a date could suggest that the employee was a sex object who should betreated as such. See Nejat-Bina, supra note 65, at 350 n.186.
195. See supra notes 192-94 and accompanying text.
196. See id.

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inability to advance because of gender-based conduct unwelcome. Additionally, there may be literally nothing to complain about. Individual
acts of sexual favoritism may not merely be tolerated by the EEOC, but
may not even be considered individual acts of harassment. 197 Only when
the favoritism becomes systematic and pervasive does the overall conduct appear to become actionable. 198 However, complaining only after
the favoritism is rampant would not seem to give timely notice that earlier instances of favoritism were unwelcome. Seemingly, the unwelcomeness requirement must be severely altered or abandoned as it applies to sexual favoritism.
Third-party harassment, like sexual favoritism, can be evidence of ahostile work environment, and the unwelcomeness inquiry may be similarly difficult to apply to it. 199 In Leibovitz v. New York City Transit
Authority, 200 the court allowed suit based almost exclusively on thirdparty harassment. 201 The plaintiff did not work in the area where theharassment occurred and had not been a direct witness to much, if any,of the harassment. 202 While the targets of the harassment worked at theTransit Authority, they did not work directly with the plaintiff and were
not friends of the plaintiff. 203 After the plaintiff learned of the thirdparty harassment, she reported it to Transit Authority personnel, who
did little to correct the situation. 204 The jury determined that the Transit
Authority's response indicated a deliberate indifference to plaintiff's"right to a gender-bias-free environment" and that the subject workplace was so permeated with discriminatory sexual behavior that "italtered the conditions of her own employment, and created an abusive
197. See supra note 189 and accompanying text.
198. See id.
199. See O'Connor, supra note 176, at 544-45 (noting generally that the bystander cause ofaction follows from more traditional hostile work environment cases by merely recognizing thatharassment against anyone can lead to effects on the entire workplace atmosphere).
200. 4 F. Supp. 2d 144 (E.D.N.Y. 1998).
201. The theory of recovery is simple. See Leibovitz v. New York City Transit Auth., 4 F.
Supp. 2d 144, 150 (E.D.N.Y. 1998) ("Plaintiff suffered emotional trauma. The trauma was
directly traceable to the sexually harassing environment in her workplace. She sought relief
through her employer; it was either denied or delayed. She has established constitutional standing."). Liebovitz was reversed on the grounds that the plaintiff's workplace or working conditions were not hostile. See Liebovitz v. New York City Transit Auth., 252 F.3d 179, 190 (2dCir. 2001). However, the Second Circuit continued to note that claims based in part on harassment by others could be cognizable. See Liebovitz, 252 F.3d at 190.
202. See Leibovitz, 4 F. Supp. 2d at 146 ("She was never discriminated against on the basisof sex, nor was she personally the target of inappropriate sexual behavior. There was, however,evidence of sexual harassment of other women in her shop that caused her emotional distress.").
The court made the general point that courts have recognized that someone who has not been theobject of harassment can claim that a hostile work environment existed. See id. at 151.
203. See id. at 146 ("It was conceded that much of the alleged harassment did not occur inplaintiff's immediate vicinity and much of what she knew about the situation was second- or
third-hand.").
204. !d. at 147.

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working environment for her. "205 Whether the Leibovitz opinion will
herald a trend or be viewed as an outlier is unclear. 206 However, thetheory underlying it is the well-established notion that conduct not directed at a plaintiff can help create an atmosphere that may yield a hostile work environment claim. 207
The unwelcomeness requirement does not adapt well to claims
based on third-party conduct. The first problem is determining whether
the focus should be the plaintiff's reaction to the conduct or the target's
reaction. A hostile work environment claim depends on whether theplaintiff's conditions of employment have been discriminatorily alteredbecause of plaintiff's gender. 208 Thus, if the unwelcomeness inquiry
applies at all, it should focus on whether the plaintiff found the conduct
unwelcome, rather than on whether the subject of the conduct found it
unwelcome. Plaintiff's harm may be related to her belief that the harassing conduct may eventually be aimed at her or the belief that the
conduct devalues one gender such that all workers of that gender, including plaintiff, have a more difficult time doing their job. Though
plaintiff's concern may be most credible and reasonable if the target ofthe conduct finds it unwelcome-because it would suggest that the putative harasser will engage in harassing conduct though it causes discomfort to the subject of the conduct-plaintiff's fears may still be reasonable even if the target finds the conduct welcome. 209 As different people
can find conduct unwelcome or not based on personal proclivities, 210 itshould hardly be surprising that a target of potentially harassing conduct might not find the conduct unwelcome while a co-worker would.
However, there may be a limited situation in which the subject's reaction to the conduct is dispositive. One focus of the unwelcomenessinquiry in a third-party harassment case presumably may be on either
205. ld.
206. Some commentators have challenged the particulars of the ruling. See, e.g., L. Robert
Guenthner III, Who is the Victim Here?: Vicarious Sexual Harassment After Leibovitz v. New
York City Transit Authority, 55 WASH. U. J. URB. & CONTEMP. L. 299, 314 (1999) (advocating
limiting third-party claims to situations where the plaintiff has witnessed the harassment and is amember of the class of persons harassed). Liebovitz has been reversed, but the general cause ofaction stands.
207. See Hicks v. Gates Rubber Co., 833 F.2d 1406, 1416 (lOth Cir. 1987) (noting that the
courts addressing the issue had determined that the harassment of third parties was relevant to aplaintiff's claim of harassment); Shepard v. Frontier Communications Serv., Inc., 92 F. Supp.
2d 279, 288-89 (S.D.N.Y. 2000) ("A claim for hostile work environment, however, does not
require that the harassing conduct be directed at the person bringing suit .... Restricting claims
only to those to whom the harassment occurred personally would unduly limit the scope of theprovision."); Waterson v. Plank Road Motel Corp., 43 F. Supp. 2d 284, 288 (N.D.N.Y. 1999)(noting that third-party harassment can be relevant to creating a hostile work environment).
208. See supra notes 1-3 and accompanying text.
209. In Leibovitz, the underlying conduct did not appear to be welcome. See Leibovitz, 4 F.
Supp. 2d at 146-47.
210. See discussion supra Part III.A.

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whether the plaintiff found the harassment of others in the workplace
unwelcome or whether the plaintiff would have found the conduct unwelcome had it been directed at her. When the focus is plaintiffs concern about the harassment of others, the subject's reaction to the conduct may inform the issue. That is, if the subject does not find the conduct unwelcome, the complaint cannot rest on the notion that the plaintiff was damaged by seeing harm to others, as no one was harassed.
Conversely, when the focus is whether plaintiff would have found the
conduct unwelcome had it been directed at her, whether the subject
found the conduct unwelcome would be irrelevant. Of course, much of
the discussion above may be purely academic if unwelcomeness is to bereviewed solely from the putative harasser's perspective.
Demonstrating that the harasser knew or should have known thatthe conduct was unwelcome is also tricky in the third-party harassment
context. Because the conduct is not directed at plaintiff and the putative
harasser is not likely to know that the conduct was unwelcome to someone he has not met, the requirement would seem to require that theplaintiff tell the putative harasser or the employer that the conduct
would be unwelcome by plaintiff had it been directed at plaintiff. Of
course, unless the target of the conduct also found the conduct unwelcome, the typical and appropriate response might be, "so what." Therequirement that a plaintiff complain about all conduct that is unwelcome, even if it would be somewhat irrational to complain at the time it
occurred raises the same concern as above-that the plaintiff may become subject to non-actionable but problematic conduct after complaining about conduct that is not actionable.
Requiring notice in this context seems strange. Assume that a supervisor treats his secretary in an objectively offensive and genderspecific manner, but that the secretary has not indicated that the conduct is unwelcome. This would not necessarily be surprising given thateven consensual and voluntary relationships may yield behavior that
may appear gendered and offensive from outside of the relationship, but
may not be unwelcome to those inside of the relationship. 211 Assume
that the secretary sees the conduct as relatively harmless gender-based
playfulness that will stop if she requests. 212 The supervisor is likely
211. Of course, inappropriate conduct can occur in intimate relationships. See Benedet, supranote 61, at 162-63 ("As the cases discussed above indicate, however, a good deal of the conduct
ultimately considered welcome is equally inappropriate outside the workplace, even in the context of an otherwise mutual intimate relationship.").
212. Some people find playfulness flattering, regardless of possible future implications. See
Dockter v. Rudolf Wolff Futures, Inc., 913 F.2d 456, 460 n.4 (7th Cir. 1990). The Dockter
court stated that:
Ms. Rosenburg worked for five months as an Account Executive for Rudolf Wolff.
She testified that Gannon called her at home on a number of occasions to ask her
out to dinner-and that she went to dinner with him one time. Ms. Rosenburg also

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778[Vol. 53:3:733

concerned about whether the secretary finds the conduct unwelcome,not whether a different worker would find the conduct unwelcome wereit directed at her. Of course, even if the target were clear that the conduct was unwelcome, that would not provide notice to the putative harasser that a third-party plaintiff found the conduct unwelcome. Simply,
there may be no reason for the harasser to know or suspect that the
conduct was unwelcome unless he was specifically told that by theplaintiff.
If the unwelcomeness requirement is to protect the putative harasser
and the employer, it serves no function if the plaintiff is not required totell the putative harasser about the discomfort. Nonetheless, whether
the putative harasser is informed or not, the conduct may create aworkplace atmosphere in which a willingness to accede to inappropriate
gendered conduct is or seems to be a means to advancement. 213 An employee who fears the gender-based conduct that may attend a sexinfused workplace or does not function as well in such a workplaceshould not have to endure discriminatory conditions of employment that
may come with working in such a workplace merely because the harassment has not yet been visited on her or she has not spoken up about
conduct that has not been aimed at her. Simply, a hostile work environment may actually exist for the plaintiff, but based in part on conduct deemed not unwelcome under the current unwelcomeness requirement.
The unwelcomeness inquiry is clearly in tension with hostile work
environment harassment based on conduct directed at others. In thesexual favoritism context, the EEOC is likely willing to ignore the unwelcomeness requirement or presume it proved once the conduct is pervasive. In third-party harassment cases, courts have acknowledged thatsuch conduct can support a hostile work environment claim without
analyzing the unwelcomeness requirement. 214 Rather than ignore therequirement, courts should recognize that the unwelcomeness requirement should not apply at all in these situations.

3.

Conduct Directed at Plaintiff

Though the unwelcomeness requirement's supposed utility is most
testified that Gannon would attempt to hold her hand at work, but she found it flattering. Finally, Ms. Rosenburg did not believe that she had been sexually harassed
by Gannon.
Dockter, 913 F.2d at 460.
213. Of course, such conduct may never be meaningfully welcome in such situations. Cf.
Estrich, supra note 139, at 831 ("[T]here is no such thing as truly 'welcome' sex between a maleboss and a female employee who needs her job.").
214. See, e.g., Leibovitz v. New York City Transit Auth., 4 F. Supp. 2d 144 (E.D.N.Y.
1998).

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easily seen with respect to sex-based conduct directed at a plaintiff,some of the most severe practical problems with the unwelcomenessrequirement arise when it is applied to such conduct. While conduct notdirected at a plaintiff may not be expected to conform to the unwelcomeness inquiry precisely because it is so different from the traditional
harassment to which the inquiry has been applied, conduct that is directed at plaintiff does seem sufficiently similar to traditional harassment for us to expect the unwelcomeness inquiry to apply. Nonetheless,there is an inherent conflict between the unwelcomeness inquiry andhostile work environment harassment in this situation. Seemingly welcome conduct can harm an employee's terms of employment when thediscriminatory nature of an employee's working conditions is unrelated
to whether the conduct creating the conditions is unwelcome.
The problem is most pronounced when the conduct is not intentionally hurtful to the plaintiff and might not be viewed as hurtful by manyto whom similar conduct has been directed. For example, assume that,like in our hypothetical, the female managers are expected, but not required, to plan office birthday parties, office luncheons and firm retreats. The expectation that these tasks will be done by women reflects
the firm's and arguably society's vision of women as nurturers who, in
addition to their assigned jobs, will help make the workplace a morehumane place. 215 The tasks are not considered work duties when promotions are determined, but may shape the company's opinion of a female
manager's willingness to be a team player.
The expectation that such tasks be done by women may not appear
objectionable or unwelcome to particular female employees or even to
substantial numbers of female employees precisely because it reflects
societal gender bias, and could be considered too insignificant to merit
serious Title VII concern. 216 Indeed, some of the female managers whoare expected to engage in such tasks may simply not care about thetasks or their implications. However, when such conduct combines withother conduct that sends the message that women employees are not as
highly valued as their male colleagues, or can be treated differently
based on societal gender stereotypes, the atmosphere can make a particular employee's job more difficult to do or advancement more diffi215. The notion that refuge in familiar sex roles may cause problems is not new. See Vhay,

supra note 15, at 341. Vhay cites to Barbara Gutek and notes:[M]any men are uncomfortable with women in a work role, and as a result many
revert to familiar sex roles. Regardless of the reason, however, when sex roles are
injected into the workplace, sexual expressions often follow. When these expressions lack mutuality and present a barrier to work, they become harassment.
/d.
216. For a general discussion of what is significant enough to constitute a change in terms,
conditions or privileges of employment, see Beiner, supra note 28. White, supra note 28.

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cult to obtain because of gender. 217 Were such conduct severe or pervasive enough to constructively alter the terms of an employee's employment, it would seem, by definition, to create a hostile work environment, but for the unwelcomeness requirement.
Application of the unwelcomeness inquiry to this conduct would require that the plaintiff complain about the gendered nature of the partyplanning roles. Whether the party-planning expectations resulted fromfirm culture, or from signals given by supervisors or the head of theoffice, the plaintiff would have to tell a supervisor or the head of thefirm that expecting female, but not male, managers to plan parties,
luncheons and retreats is inappropriate. The danger of such a complaintis particularly acute if some female managers do not view the conduct
as unwelcome. While the appropriate solution might seem to be to let
the complaining manager decline to plan luncheons, the complaint itself
may lead the employee to be viewed as someone who borrows trouble
and is not appropriate for advancement. The putative plaintiff's workplace comfort may decline, but not in an actionable way, when treatment by co-workers and her likelihood of advancement is recalibrated
based on her new reputation. 218 Not surprisingly, it may be more sensible to keep quiet.
Keeping quiet is problematic, particularly because the signal takenfrom the unwillingness to tell a supervisor that conduct is unwelcome
may be that the conduct is welcome, rather than that it is not worth thepotential price to tell the supervisor that the conduct is unwelcome.
Accepting the harassment makes it appear non-problematic and susceptible to repetition; telling the harasser to stop risks other problems,such as making an enemy or being labeled unfriendly or overly sensitive. While these risks may not seem to be substantial, they are. To theextent that the Supreme Court has suggested that a personal vendetta
against someone may qualify as a non-discriminatory reason to firethem, making an enemy in the workplace can be job-threatening. 219 Ignoring the conduct and bearing it may be wise even though the result
may be an increasingly uncomfortable workplace for the employee. 220
This hardly advances Title VII's goals.

217. This does not suggest that merely treating women and men differently in the workplace
automatically results in sexual harassment. See Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 81 (1997) (noting generally that the different ways that men and women interact in theworkplace will not usually support hostile work environment harassment). Rather, it is that such
behavior, depending on its nature, can result in a hostile work environment.
218. See, e.g., Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 961 (8th Cir. 1999) (noting poor
treatment following harassment complaints).
219. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); Jennings v. Tinley Park
Cmty. Consol. Sch. Dist. No. 146, 864 F.2d 1368 (7th Cir. 1988).
220. See, e.g., Gray v. Tyson Foods, Inc., 46 F. Supp. 2d 948 (W.D. Mo. 1999).

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V. RESOLVING THE TENSION BETWEEN UNWELCOMENESS ANDSEXUAL HARASSMENT LAW

When sexual harassment was characterized by sexual demands andconduct accompanying highly sexualized workplaces, the harm of sexual harassment stemmed from the plaintiffs negative reaction to the
conduct, and the unwelcomeness requirement may have fit. Whether theplaintiff actually welcomed the conduct seemed relevant because if theplaintiff welcomed the conduct, the employee's terms, conditions andprivileges of employment would not have been altered to the employee's detriment by the conduct. While many quarreled with how
courts determined that conduct was welcome and have suggested thatthe unwelcomeness requirement should not have existed even under theold vision, the theory of unwelcomeness appeared to mirror the theoryof sexual harassment harm. 221 However, the evolution of sexual harassment has changed the relationship between unwelcomeness and sexual
harassment harm.
Sexual harassment now focuses squarely on harassing conduct thatcauses Title VII harm-the discriminatory provision of terms, conditions and privileges of employment because of sex. 222 As has been argued elsewhere, sexual harassment can often be thought of merely as
sex discrimination where the conduct underlying it is harassing. 223
When sexual harassment focuses squarely on ali aspects of harm to an
employee's terms of employment, much of the theoretical justification
for the unwelcomeness requirement-even when narrowly appliedvanishes. The theory of sexual harassment harm no longer mirrors thetheory of unwelcomeness.
The unwelcomeness requirement's two possibly appropriate purposes-guaranteeing that harm has occurred and providing notice-are
already served by other features of sexual harassment law. The harmelement is served by the requirement that plaintiff's terms, conditions
or privileges of employment be altered or provided in a discriminatory
manner and by the objective and subjective offense inquiries. 224 The
notice-serving function has been supplanted by the affirmative defense
221. Not surprisingly, many have suggested that unwelcomeness' use be sharply curtailed oreliminated completely. Benedet, supra note 61, at 174 ("Welcomeness should only be invoked in
the unusual case in which a hostile environment sexual harassment claim is based on sexualintercourse or related behavior and where the defendant can establish that the impugned conduct
was mutual, consensual, and unaffected by workplace hierarchies."); Estrich, supra note 139, at
858 ("The 'welcomeness' inquiry should be eliminated in both quid pro quo and hostile environment cases, because the additional requirements of proof in both types of cases make the welcomeness inquiry doctrinally gratuitous and personally humiliating for women.").
222. See generally Chambers, supra note 6.
223. See generally id.
224. See discussion supra Part III.B.3.

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to sexual harassment detailed in Burlington Industries, Inc. v. Ellerth225
and Faragher v. City of Boca Raton, 226 applicable to supervisor harassment, and the knew or should have known standard, applicable to nonsupervisor harassment. 227 Given that the employer, not the putative harasser, is liable under Title VII, notice is necessary only so that theemployer can remedy the harassing situation. 228 The affirmative defense
focuses on the employer's culpability or complicity in failing to detector remedy the subject harassment. 229 By requiring that the employer
provide some reasonable method for employees to complain about sexual harassment and the employee not unreasonably refuse to use thesystem, the defense allows a vigilant employer to detect a pattern ofharassment. While this affirmative defense is certainly not specificallyaddressed to the unwelcomeness inquiry, it encourages employers toconstruct responsive complaint systems that provide precisely the noticethat the unwelcomeness requirement ostensibly provides.
To be clear, this Article is critical of the notice-serving functionthat the unwelcomeness requirement serves and argues that notice
should not be required in many circumstances. However, in situations
where requiring notice is appropriate, it is already served by defenses
the employer already has, obviating the need for the unwelcomenessrequirement. 230 Of course, putting the onus of ferreting out problematic
conduct on the employer will likely cause employers to police workplace conduct. 231 However, because the employer is the liable party
under Title VII, that an employer may be vigilant regarding Title VII
violations is hardly surprising. 232 While this may cause concern to those
who believe that hostile work environment jurisprudence already violates the First Amendment in some respects, 233 those issues are outside
225. 524 u.s. 742 (1998).
226. 524 u.s. 775 (1998).
227. See supra notes 35-36 and accompanying text.
228. While some might suggest that notice is important so that the harasser will know to stopbecause of sanctions he might face from his employer, the employer's policy on disciplining
employees may or may not provide that notice of unwelcomeness is important. Whether such a
policy requires notice may be a matter of fairness, but is not relevant to the unwelcomenessrequirement's notice-serving function.
229. See Faragher, 524 U.S. at 775; Ellenh, 524 U.S. at 742.
230. Where the unwelcomeness requirement or the affirmative defense encourages an employee to confront the putative harasser or inform a supervisor without negative consequences, it
may provide a warning that certain behavior is inappropriate, thereby allowing the employer todeal with the behavior before liability develops. To the extent that Title VII seeks compliancerather than litigation, this may be the notice-serving function's only redeeming feature.
231. See Balkin, supra note 21, at 2298 (suggesting that employers will create broad prohibitions on speech to avoid Title VII liability in part because employers must eliminate all conductthat can help create a hostile environment, not merely individual comments).
232. See id. at 2305 & n.32 (noting that it is sensible to hold employers responsible for hostile environments even if the result is collateral censorship of employees).
233. Various arguments have been made suggesting that hostile work environment harassment
is inconsistent with the First Amendment. ld. at 2296. Balkin notes that two arguments have been

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of the scope of this Article. 234
Were retaining the unwelcomeness requirement costless, doing so
might appear sensible. However, there is harm in keeping it. The
emerging doctrine of sexual harassment recalls Title VII'~ core goals of
eliminating gender discrimination and empowering all workers. 235 As
courts continue to recognize that sexual harassment law protects workers from all types of gender-based harassment that can limit their opportunities,236 the unwelcomeness requirement improperly limits thetype of conduct that may yield sexual harassment liability. As eliminating gender-related barriers to workplace success is a proper aim of Title VII, 237 sexual harassment law must be structured toward that end, orat least should not be structured in opposition to those ends.
In addition, the unwelcomeness requirement's central message-that
potentially harassing workplace conduct should be considered welcome
until someone complains about it-may delay the realization of Title
VII's goals. That message allows and, in some respects, encourages thesexualization of a workplace up to the level where an employee willcomplain about the conduct and allows the sexualization of a workplace
up to the level at which an individual employee no longer will or cantolerate it. 238 This puts the onus on those who feel uncomfortable tocomplain rather than on those engaging in potentially harassing conduct
made that liability for hostile work environment harassment is incompatible with the First
Amendment:
The first concedes that the creation of a hostile [work] environment is not protectedspeech, but argues that fear of Title VII liability will lead employers to censor employee speech and that this chilling effect violates the First Amendment. . . . The
second, and more radical attack on hostile environment liability argues that whenemployers create a hostile environment that materially alters working conditions to
the disadvantage of women and minorities, they are engaged in protected speech.
/d.
234. For now, other scholars can explain why Title VII's prohibition on providing terms or
conditions of employment on a discriminatory basis does not violate the First Amendment. See,e.g., Balkin, supra note 21, at 2318-20; Deborah Epstein, Free Speech at Work: Verbal Harassment as Gender-Based Discriminatory (Mis)Treatment, 85 GEO. L.J. 649 (1997).
235. As Professor Vicki Schultz has noted, unwelcomeness' narrow focus on sex has limited
sexual harassment law's use in broadly "promot[ing] women's empowerment and equality as
workers." Schultz, supra note 15, at 1729 (noting that the unwelcomeness inquiry is related tocourts' willingness to "focus[] on sexual advances as the quintessential harassment").
236. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1997) (ruling that samesex sexual harassment should be analyzed like any other type of sexual harassment).
237. See Schultz supra note 15, at 1796. Schultz notes that:
The new account of hostile work environment harassment would restore harassment
law to Title VII's original purpose. From the beginning, the central purpose of thestatute's prohibition against sex discrimination has been to enable everyoneregardless of their identities as men or women, or their personae as masculine or
feminine-to pursue their chosen endeavors on equal, empowering terms.
/d.
238. However, this does not mean that the employee will actually complain; the employee
may simply quit. Radford, supra note 48, at 523 (presenting studies suggesting that victims ofharassment are as likely to change jobs as to complain).

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to refrain. 239 While workplaces infused with sexual banter, potentiallyharassing behavior, and the expectation of conformity to gender roles
can be nondiscriminatory, little reason exists to believe that they generally are. If employees are free to engage in potentially harassing behavior until being told to stop, such behavior could be legion well before
any such conduct would be actionable, thereby making employees' jobs
more difficult to do because of their gender, based <;m conduct not considered by the courts to be unwelcome.
As noted above, a strictly enforced unwelcomeness requirement
would require that all conduct used to support a hostile work environment claim be unwelcome, putting the plaintiff in the difficult positionof accepting potentially harassing conduct without future recourse orcomplaining enough to garner a troublesome reputation and poor treatment in the workplace. 240 Unfortunately, such a reputation may create
problems for the employee that can make her working environment difficult or shape future employment decisions respecting her. 241 This is achoice that an employee should not have to face in the wake of Title
VII.242

The unwelcomeness requirement also affirmatively protects the putative harasser who did not realize that the target of his conduct did not
welcome it. Such protection inappropriately validates a putative harasser's mistake even when the harasser's conduct occurs in the workplace-a place Title VII suggests should be free of sex discriminationand even though actionable sexual harassment does not render the harasser personally liable. 243 However, more important than protecting theputative harasser from nonexistent Title VII liability, the unwelcomeness requirement may help protect the harasser's reputation in the239. See Weiner, supra note 69, at 649 ("Sexual harassment policies that instruct victims thatthey must stand up to their harassers also have the effect of teaching harassers that they may door say anything sexual to anyone until they are told to stop.").
240. See Brooks v. City of San Mateo, 229 F.3d 917, 922 (9th Cir. 2000) (noting plaintiffs
complaints of ostracism after reporting harassment); Howard v. Burns Bros., Inc., 149 F.3d 835,
839 (8th Cir. 1998) (noting that one of the issues raised by the plaintiff was that she was ostracized after she helped another employee with a harassment complaint).
241. This is not a reference to retaliation, just a reference to those situations in which theability to get along with difficult people is viewed as merit.
242. However, at least one court has suggested that the discomfort stemming from reporting
sexual harassment is to be borne by the plaintiff, at least in some contexts. See Alberter v.
McDonald's Corp., 70 F. Supp. 2d 1138, ll50 (D. Nev. 1999). The Alberter court stated that:
Discussing inappropriate sexual behavior with managers or employers will causesome degree of discomfort in almost all cases. Many victims of sexual harassment
fear reprisals or negative reaction. Yet the high court has stated that it is, at leastin part, the duty of the victim of sexual harassment to take action.
Alberter, 10 F. Supp. 2d at 1150.
243. See Van Jelgerhuis v. Mercury Fin. Co., 940 F. Supp. 1344, 1362 (S.D. Ind. 1996)(finding no individual liability under Title VII for harassing supervisor); Chambers, supra note
6, at 1605 n.59 (listing cases ruling that there is no individual Title VII liability for harassers).

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workplace. By allowing the harasser to argue that he literally did nothing wrong because the plaintiff welcomed the conduct and was notharmed by it, the unwelcomeness requirement may allow the harasser
to fairly claim that he did not breach workplace or societal norms. 244
Thus, the requirement may allow harassment to pass as unremediable
horseplay and may allow the harasser to suggest that his conduct was
playful or misunderstood, and thereby brand the plaintiff a dishonest
flirt who welcomed the conduct or an inflexible prude. The possibilityof such reprisals may deter others from challenging harassment, either
in the workplace or in court. 245 Of course, harassment that is not
charged formally or addressed informally will not be remedied.
Hostile work environment harassment jurisprudence is geared toward giving every worker an environment free of harassing conductthat may lead to the discriminatory provision of terms or conditions of
employment; 246 it is not about eliminating sex or incivility from theworkplace. 247 Flowing from Title VII, hostile work environment doctrine should be used to protect employees from the effects of gendered
workplaces that yield discriminatory terms or conditions of employment. The unwelcomeness requirement allows some potentially harassing conduct to go unchecked and without consequence unless someone
244. However, that the unwelcomeness requirement may lead to a dismissal of a case does notnecessarily suggest that the underlying conduct involved was appropriate or beneficial to theworkplace atmosphere, it merely suggests that Title VII will not make the employer liable for the
behavior.
245. See Leibovitz v. New York City Transit Auth., 4 F. Supp. 2d 144, 147 (E.D.N.Y.
1998), rev'd, 252 F.3d 179 (2d Cir. 2001) (noting incident in which plaintiff was told that "her[harassment] complaints could be detrimental to her career."); Notice in Hostile Environment
Discrimination Law, supra note 36, at 1987 ("Harassment complaints often lead to negative job
evaluations, denials of promotions, transfers, and firing. Informal sanctions from co-workers andsupervisors, such as withdrawal of job support and social support, are also common. Moreover,a harassment victim may be publicly labeled a liar, hysteric, or troublemaker.") (footnotes omitted); Monnin, supra note 78, at 1159. Monnin states that:Few women complain of being sexually harassed because the noneconomic costs ofreporting an incident are seen as prohibitive. Women fear that they will be blamed
for the conduct, that nothing would be done in the event of a complaint, and thatthey would suffer negative repercussions in the form of retaliation and further harassment.
/d.

246. Of course, the elimination of objectively offensive conduct does not require the elimination of all workplace harassment. See Benedet, supra note 61, at 134. Benedet states that:
The presence of an objective standard [of offense] indicates that some verbal or
physical conduct of a sexual nature, even if unwanted by and unwelcome to theplaintiff, is not actionable sexual harassment. Some degree of harassment is thus
permissible, regardless of its effects on the plaintiff, because it does not possess
the characteristics that render it objectively unreasonable.
/d.
247. See Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80 (1998) (noting that Title VII
is not a civility code); Balkin, supra note 21, at 2308 (noting that Title VII's prohibition on
sexual harassment is not about civility, it is about prohibiting conduct that attempts "to maintainthe inferior status of women").

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complains about it contemporaneously. The unwelcomeness requirement conflicts with Title VII's goals and must yield because potentiallyharassing conduct, whether welcome or not or complained of or not,can help create a hostile work environment. As sexual harassment jurisprudence has outgrown any reasonable use of the unwelcomenessrequirement, the requirement should be eliminated. Though merely relaxing the requirement may seem preferable, keeping the requirement inany form would allow courts to misuse it.
However, one role may remain for welcomeness. Welcomenessmay always remain an evidentiary issue related to damages in a sexual
harassment case by informing how severely a plaintiff's conditions of
employment were changed and how much damage a plaintiff suffered.
It might be relevant to some issues in some cases, though it would not
be dispositive of the existence of a claim. 248 This narrow evidentiary
use is the only appropriate use of welcomeness in sexual harassment
law.
VI. CONCLUSION
Title VII's goal is to stop gender discrimination in the workplace.
The unwelcomeness requirement no longer serves that goal, if it everdid. 249 Indeed, the unwelcomeness requirement no longer serves eitherof its theoretically appropriate purposes: to guarantee that sexual harassment harm has occurred and to provide notice to the putative harasser or the employer that the conduct is unwelcome. As conduct thatcan support a sexual harassment claim has been broadened to include allgender-based harassment that affects an employee's terms or conditionsof employment, the lack of unwelcomeness does not guarantee the lackof harm, and when notice is required, other provisions of sexual harassment law guarantee that notice exists.
The unwelcomeness requirement encourages the sexualization of
workplaces in ways that can harm the ultimate goal of workplace gender equality by suggesting that offensive gender-motivated workplace
conduct should be deemed normal and go unchecked until someone iswilling to say it is unwelcome. This allows for a gendered workplace
248. Indeed, such an approach may accommodate those who suggest that the unwelcomenessrequirement should be retained in sotne form, lest its elimination indicate that women lack theability to consent to sexual conduct in or related to the workplace. See Abrams, supra note 15, at
1222-24 (arguing that a number of commentators wish to retain the unwelcomeness requirement
and providing an alternative to the current unwelcomeness model).
249. Commentators have noted that theories underlying the unwelcomeness requirement would
not be at all convincing outside of the sexual harassment context. See, e.g., Benedet, supra note
61, at 165 (suggesting that unwelcomeness is used inappropriately in the sexual harassment context in a way it would never be used in the racial harassment context); see also Hebert, supranote 149, at 588.

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that appears acceptable even as employees' terms or conditions of employment are actually being harmed by the workplace atmosphere.
The unwelcomeness requirement should be eliminated because it nolonger serves any useful purpose that is not already served by anotherfeature of sexual harassment law and is at odds with Title VII's goals.