Sexual Harassment is Conduct that is Unwelcome or Unwanted
last updated 1 April 2007

Legal systems have articulated "unwelcome or unwanted" conduct in different ways.

U.S. Approach

In the United States, case law has fleshed out the standard for determining whether sexual advances or other forms of sexual harassment are "unwelcome." The U.S. Court of Appeals for the Eleventh Circuit in Henson v. City of Dundee, 682 F.2d 897, 903 (1982), explained that the challenged conduct must be unwelcome "in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive." In Meritor Savings Bank v. Vinson, 477 U.S. 57, 60 (1986), the Court stated that "the fact that sex-related conduct was 'voluntary,' in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. . . . The correct inquiry is whether [the victim] by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary." The Meritor court also held that a plaintiff's sexually provocative speech or dress is "obviously relevant" in determining whether she found particular advances unwelcome, but such evidence should be considered with caution in light of the potential for unfair prejudice. From Meritor Savings Bank v. Vinson, 477 U.S. at 69.

In policy guidance, the United States Equal Employment Opportunity Commission further explains that "[w]hen there is some indication of welcomeness or when the credibility of the parties is at issue, the charging party's claim will be considerably strengthened if she made a contemporaneous complaint or protest. … For a complaint to be 'contemporaneous,' it should be made while the harassment is ongoing or shortly after it has ceased." From EEOC Policy Guidance on Current Issues of Sexual Harassment (1990).

This approach to the "welcomeness" concept has been criticized by many legal commentators in the United States. Robin Phillips concludes that this approach results in litigation which focuses "on the women's personal life, her dress, her speech, and even her choice of lunch companions—rather than the perpetrator's inappropriate conduct. From Robin Phillips, Violence in the Workplace: Sexual Harassment in Women and International Human Rights Law, Vol. 1, Eds. Kelly D. Askin & Dorean M. Koenig, 257 (1999). Susan Estrich compares the welcomeness standard outlined above to the rape standards of consent and resistance. From Susan Estrich, Sex at Work, Stanford Law Review, Vol. 43, 813, 827-828 (1991). In addition, the EEOC's focus on contemporaneous complaint or protest may under certain circumstances place unfair pressure on a victim of harassment to react to harassment in the "correct" way during a stressful or coercive situation or risk losing the ability to pursue legal action against her harasser or employer. 

European Union Approach

The EU Code of Practice on Measures to Combat Sexual Harassment developed in 1992 addresses the meaning of "unwanted" in the definition of sexual harassment included in the Code as follows:

The essential characteristic of sexual harassment is that it is unwanted by the recipient, that it is for each individual to determine what behaviour is acceptable to them and what they regard as offensive. Sexual attention becomes sexual harassment if it is persisted in once it has been made clear that it is regarded by the recipient as offensive, although one incident of harassment may constitute sexual harassment if sufficiently serious. It is the unwanted nature of the conduct that distinguishes sexual harassment from friendly behaviour, which is welcome and mutual"

From Section 2 of the Code of Practice included in EU Commission Recommendation of 27 November 1991 on the protection of the dignity of women and men at work, 1992 O.J. (L49) 1.

The requirement that sexual harassment be "unwanted" before the behavior gives rise to legal liability has been included in the new directive on sexual harassment adopted by the European Union Commission and Parliament in 2002. From Directive 2002/73/EC of the European Parliament and of the Council of 23 Sept. 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. (PDF, 6 pages).

U.K. Approach

In the United Kingdom, a Court shed light on the concept of what is necessary to prove that harassing conduct was unwanted by holding that "[i]t was not necessary for a woman to make a public fuss to indicate her disapproval. Provided any reasonable person would understand, whether by her words or conduct, that she had rejected the behaviour in question, then continuation of this behavior would be harassment." From Reed & Bull Information Systems v. Stedman (1999, IRLR 299, EAT)(Word).

The U.K. recently issued The Employment Equality (Sex Discrimination) Regulations 2005, amending the Sex Discrimination Act of 1975.  These regulations, which came into force on October 1, 2005, were issued in response to the amended Equal Treatment Directive – 2002/73/EC.  See Updating the Sex Discrimination Act, Consultation Document (2005). The regulations state that conduct defined as sexual harassment will only be considered as violating a woman’s dignity or creating “an intimidating, hostile, degrading, humiliating or offensive environment for her” if such conduct “should reasonably be considered as having that effect.”  See The Employment Equality (Sex Discrimination) Regulations 2005, section 5 (Crown Copyright 2005). 

Canadian Approach

In Canada, laws that address sexual harassment do not require the victim to confront the alleged harasser in order to establish that the behavior was unwelcome. Additionally, it is not necessary for the victim of sexual harassment to expressly object to the conduct if a reasonable person would understand the behavior to be offensive and sexual in content. In establishing a sexual harassment claim, the fact that the victim made previous complaints about the same conduct is evidence that the conduct was, in fact, unwelcome.

In cases when the behavior is not obviously offensive, however, express objection is required. In such cases, it is sufficient for a legal claim if the victim has expressed objection through body language, e.g., embarrassed or hurt looks, departure from the room or avoidance. A verbal objection is not necessary to establish that sexual harassment has occurred.

Adapted from Canadian Human Rights Commission, Harassment and the Canadian Human Rights Act; The Human Rights Commission of British Columbia, Canada, Preventing Harassment in the Workplace (2002).