Sexual Harassment is Conduct that is Unwelcome or Unwanted

last updated February 2019

In the United States, case law has established the standard for determining whether sexual advances or other forms of sexual harassment are “unwelcome.” Conduct is considered unwelcome if the employee did not solicit or incite it and if the employee regarded the conduct as undesirable or offensive.[1] In Meritor Savings Bank v. Vinson, the Court found:

[T]he 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.[2]

A plaintiff’s demeanor, including speech and dress, can be examined to determine whether the objected to conduct was unwelcome.[3] However, this evidence should be considered with caution in light of the potential for unfair prejudice, and context matters. For example, in Perez-Cordero v. Wal-Mart Puerto Rico, Inc., the First Circuit held that the plaintiff’s “acquiescence to the customary greeting” among employees at a Puerto Rican Wal-Mart of a kiss on the cheek was not “in any way probative of his receptiveness” to an incident in which the harasser “forcefully sucked on his neck.” [4]

In policy guidance, the United States Equal Employment Opportunity Commission further explains:

When 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.[5]

This approach to the "welcomeness" concept has been criticized by many legal commentators in the United States. One commentator noted 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.”[6] Another compared the welcomeness standard outlined above to the rape standards of consent and resistance.[7] 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. 


[1] Frensley v. N. Miss. Med. Ctr., Inc., 440 F. App'x 383, 386 (5th Cir. 2011); Henson v. City of Dundee, 682 F.2d 897, 903 (1982).

[2] 477 U.S. 57, 60 (1986)

[3] Meritor Savings Bank v. Vinson, 477 U.S. at 69.

[4] 656 F.3d 19 (1st Cir. 2011)

[5] EEOC Policy Guidance on Current Issues of Sexual Harassment (1990).

[6] 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)

[7] Susan Estrich, Sex at Work, Stanford Law Review, Vol. 43, 813, 827-828 (1991).