Unwelcomeness Reconsidered: Adapting Sexual Harassment Law in the Long Wake of #MeToo

Collin Christner* April, 2026

The federal cause of action for sexual harassment in employment grew out of Title VII’s prohibition of workplace sex discrimination. In many circuits, for sexual harassment claims to be actionable, the plaintiff must show they found the referenced conduct “unwelcome.” Commentators have criticized that requirement since its inception; nonetheless, it has been wielded by courts that are either resistant or reluctant to abandon it. “Unwelcomeness” (or lack of evidence thereof) has been used to permit swaths of inappropriate workplace conduct—enshrining old, sexist stereotypes into America’s employment regulations. This Note evaluates the current approach to the unwelcomeness requirement and proposes a path forward for district courts: shift the burdens of pleading and production of “welcomeness” to the defendant; and clarify that the majority of disputes over unwelcomeness require credibility determinations that ought to survive dispositive motions.

Introduction

For many people who have experienced harassment, the #MeToo movement and its accompanying outcry prompted conversations about the inappropriate (and often illegal) behaviors they had encountered in their careers. #MeToo’s impact exposed just how widespread—and in a cruel sense, how ordinary—sexual harassment can be, and how many have elected not to report their harassers.¹ In the long wake of #MeToo, Congress and state legislatures have recognized the need to eliminate legal protections that shield individuals or entities engaging in discriminatory harassment, but the courts have, on the whole, lagged behind that trend.² This does not have to be the case. Courts can make strides towards equality in the workplace well within the confines of existing federal employment law.

This Note focuses on one element of sexual harassment claims: the judicially developed requirement that the challenged conduct must have been unwelcome to be actionable.³ Yet, since creating an “unwelcomeness” requirement in 1986, the Supreme Court has not elaborated on its meaning, leaving the lower courts to define it.⁴ Abiding by this vague mandate, courts frequently cite unwelcomeness as an essential element of a plaintiff’s harassment claim, sometimes wielding this requirement to excuse a wide variety of plainly inappropriate behavior on the grounds that it was not unwelcome to the complainant.⁵ Judicial reliance on an unwelcomeness element to dispose of cases on dispositive pretrial motions is misplaced. The role of “unwelcomeness” ought to be understood instead as a general rule: Pleading unwelcomeness is a minimal burden for a plaintiff’s prima facie case. When a defendant wishes to claim that the plaintiff found the conduct “welcome,” the defendant bears the burden of pleading and proving that defense. This approach acknowledges the possibility that an employer might try to defend against a sexual harassment claim on the grounds that the plaintiff voluntarily welcomed, consented to, and participated in the same conduct they complain about. But when defendants raise this argument, witness credibility will likely decide any factual dispute; therefore, disposing of a case at summary judgment on welcomeness grounds should be the rare exception, not the norm.⁶

This Note proceeds in three parts. Part I tracks the development of sexual harassment law with a focus on the unwelcomeness requirement. Part II reviews the justifications for changing the interpretation of unwelcomeness with reference to the text of Title VII and support from psychological research on social pressure in the workplace. Part III proposes a better approach to unwelcomeness more closely aligned with the text, meaning, and purpose of Title VII; identifies why the unwelcomeness inquiry’s original purpose justifies discarding it as a separate element; and cautions against wielding summary judgment to defeat viable harassment claims.

I. Overview of Sexual Harassment Law and Unwelcomeness

Modern federal sexual harassment law emerged from Title VII’s prohibition on workplace discrimination “because of sex.”⁷ Creation of the sexual harassment claim was heavily influenced by feminist scholarship, particularly the writings of Catharine MacKinnon and other scholars who argued that sexual harassment was a form of workplace sex discrimination.⁸ This academic groundwork laid the foundation for the landmark 1986 Supreme Court case, Meritor Savings Bank v. Vinson, which recognized sexual harassment as a form of sex discrimination prohibited by Title VII.⁹

This Part discusses the development of the current doctrine with a focus on the creation and impact of the unwelcomeness prong of a sexual harassment claim and its impact.

A. The Development of the Federal Sexual Harassment Claim

The modern sexual harassment lawsuit began as a matter of judicial construction. Title VII of the 1964 Civil Rights Act prohibits workplace discrimination on the basis of sex.¹⁰ In a twist of history, sex discrimination was originally not intended to be included in Title VII at all. The word “sex” was only added when Democrat Howard Smith tacked on the language in an apparent effort to kill the legislation.¹¹ But the “poison pill” amendment was approved, and Title VII, with sex discrimination included, was nonetheless passed and signed into law by President Johnson.¹² It was another twenty-four years until, in Meritor Savings Bank v. Vinson, the Supreme Court first recognized under Title VII a cause of action for sexual harassment.¹³

The modern elements of sexual harassment claims are derived from Meritor and its progeny.¹⁴ Typically, sexual harassment claims are divided into two categories: quid pro quo (conditioning some workplace benefit on acceptance of unwelcome sexual advances) and hostile work environment (severe or pervasive sex-based conduct that alters the conditions of the workplace). Neither term appears in Title VII, yet both found their way into the U.S. Reports after Catharine MacKinnon described them in her book, Sexual Harassment of Working Women.¹⁵ These categories were adopted in the U.S. Equal Employment Opportunity Commission (EEOC) Guidelines¹⁶ and state antidiscrimination statutes.¹⁷ They then found their way into federal courts of appeals’ decisions¹⁸ before their eventual acceptance as causes of action in Meritor.¹⁹

Title VII provides that it is “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”²⁰ The Court in Meritor quoted this language and unanimously held that when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor necessarily discriminates on the basis of sex. The Court went further and held that a hostile work environment, otherwise thought of as harassment that affects only “psychological aspects” of the workplace environment, is an actionable claim because “[t]he phrase ‘terms, conditions, or privileges of employment’ evinces a congressional intent ‘to strike at the entire spectrum of disparate treatment of men and women’ in employment.”²¹ Meritor thus opened the federal courthouse doors to sexual harassment lawsuits. Only 10 sexual harassment cases were filed with the EEOC before 1986; 624 were filed the following year.²² In 2024, the EEOC recorded 8,474 charges of sexual harassment.²³

Although Meritor was the start, the modern sexual harassment claim was not purely judicially developed. In a critical change, Congress amended Title VII with the 1991 Civil Rights Act, which expanded protections for sexual harassment plaintiffs and stated that additional remedies were needed to achieve Title VII’s aims.²⁴ Those amendments directly responded to and overturned contemporary Supreme Court decisions that made it harder for discrimination claims to proceed.²⁵ In doing so, Congress statutorily permitted (but capped) compensatory damages for sex discrimination and sexual harassment (including hostile work environment) claims.²⁶

#MeToo catalyzed more recent legislative reforms to harassment suits.²⁷ Because federal remedies are statutorily capped, the modern federal sexual harassment suit will often include state law claims that may offer additional remedies, such as uncapped damages.²⁸ Twenty-five states and the District of Columbia have passed more than eighty workplace antiharassment bills, in addition to other measures addressing sexual assault and gender-based abuse outside the workplace.²⁹ Congress, on the other hand, has not amended Title VII’s sexual harassment provisions since 1991. However, in 2022, it opened the courts to more sexual harassment suits when it made compulsory arbitration clauses unenforceable for sexual assault and harassment claims.³⁰ The Speak Out Act similarly rendered nondisclosure and nondisparagement agreements unenforceable if they were signed “before the dispute arises.”³¹

Although Congress and the Supreme Court have at times expanded plaintiff protections, the Court has also repeatedly imposed limits on liability. In addition to setting the high bar of “severe or pervasive” for hostile work environments, the Court has offered employers affirmative defenses.³² Absent a defense, employers are strictly liable for harassment by supervisors that results in a “tangible employment action,” and vicariously liable in other cases.³³ The Court has also repeatedly admonished plaintiffs and their lawyers: Title VII is not a general workplace civility code—it reaches only harassment that rises to the level of discrimination.³⁴

B. The Development of Unwelcomeness

One manner in which the courts have limited a plaintiff’s claim—though generally not thought of as the biggest hurdle for a plaintiff’s summary judgment case³⁵—is the unwelcomeness element. Most lower courts currently accept some version of the following sexual-harassment-claim formulation:³⁶ A plaintiff must prove that the offending conduct was (1) unwelcome, (2) based on their sex, (3) sufficiently severe or pervasive to alter the conditions of their employment (often, by creating a hostile work environment, which must be both subjectively and objectively hostile), and (4) imputable to their employer (for example, the harassment was perpetrated by a supervisor, or the employer was on notice that the harassment was occurring and failed to correct it).³⁷

Often, the first listed element is the unwelcomeness requirement. This element derives from Meritor itself, a case in which the plaintiff had submitted to numerous sexual assaults out of fear that she would lose her job.³⁸ The district court initially barred her suit, holding that her participation was voluntary, but the Supreme Court disagreed and remanded. Specifically, the Court determined the question of voluntariness had been incorrectly analyzed, and unwelcomeness, rather than voluntariness, was the framework to apply:

The gravamen of any sexual harassment claim is that the alleged sexual advances were “unwelcome.” While the question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact, the District Court in this case erroneously focused on the “voluntariness” of respondent’s participation in the claimed sexual episodes. The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome . . . .³⁹

Thus, the Court announced an unwelcomeness requirement but cautioned that “voluntary” submission is not the same as welcomeness. The Court also indicated that where unwelcomeness is disputed, those disputes are best left to juries.⁴⁰ Meritor’s language is not a model of clarity, however, and has proven intractable. The Court said that mere participatory conduct is not enough to defeat a claim, presumably because it recognized that participation may be coerced or otherwise not consensual. Yet the Court also appeared to require some outward conduct indicating unwelcomeness—two considerations that cut in opposite directions.⁴¹

The Court characterized unwelcomeness as a sexual harassment claim’s “gravamen”⁴² because, in the Court’s view, only unwelcome sexual conduct negatively affects the terms, conditions, or privileges of employment. Consequently, courts should only focus on those acts that a plaintiff raises as unwelcome.⁴³ But the extent to which the Supreme Court believes unwelcomeness is a free-standing, independent element of a sexual harassment claim is unclear. The only time the Court has ever used the word “gravamen” to describe this requirement was in Meritor itself. In subsequent sexual harassment cases, the Court used the word “unwelcome” (though only in dicta) in two employer-liability cases and in another decision dealing with Title IX,⁴⁴ but never again in the same terms in a Title VII suit.

So, has the term been abandoned? Is the idea of unwelcomeness a relic? Opinions differ. The EEOC’s September 2023 Proposed Guidance entirely deleted unwelcomeness from the elements of a sexual harassment claim, treating it as obsolete.⁴⁵ The Proposed Guidance argued that the hostile work environment analysis in Harris v. Forklift Systems, Inc.,⁴⁶ which never mentioned the word “unwelcome,” effectively “subsumed [unwelcomeness] into the Court’s new requirement of demonstrating that conduct was both subjectively and objectively hostile.”⁴⁷ Yet that Proposed Guidance did not survive final review. The most recently issued April 2024 EEOC Guidance⁴⁸ changed that interpretation; it still argued for removing unwelcomeness but recognized that “the Court did not explicitly eliminate unwelcomeness as the gravamen of a harassment claim.”⁴⁹ It also recognized that the lower courts have largely treated unwelcomeness as a separate element of a sexual harassment claim.⁵⁰ Meritor’s “gravamen” quotation remains well-cited and actively enforced.⁵¹

The predictable result of enforcing an unwelcomeness requirement and insisting that the plaintiff show unwelcomeness by her conduct, however, is that courts look for some objective evidence of unwelcomeness, rather than “uncommunicated feelings,” for a plaintiff to survive summary judgment.⁵² This has proved problematic. The requirement’s most obvious victims are plaintiffs who rely on their own testimony to create a dispute of fact. Until 2024, a plaintiff’s testimony that the challenged conduct was unwelcome did not alone prove unwelcomeness under the EEOC’s guidelines.⁵³ But unwelcomeness has also proven troublesome in other ways. For example, the EEOC’s 1990 Guidance argued that a more difficult situation arises when a relationship began consensually, but then the plaintiff ceases to participate and claims that further sexual overtures are workplace harassment. In those instances, the EEOC required the plaintiff to provide “clear notice” to the other party that further invitations were unwelcome.⁵⁴

Take another example: Some courts have grafted onto the unwelcomeness element a “consistency” requirement. They sometimes refuse to find unwelcomeness satisfied if the plaintiff “failed to send a consistent signal that [the other party’s] conduct was unwelcome.”⁵⁵ In Ryan v. Capital Contractors, Inc., the plaintiff had repeatedly asked his coworker to stop calling him “f—king dummy,” “stupid,” and “idiot,” and generally roughhousing him. Because the plaintiff occasionally engaged in some name-calling and roughhousing in return, the court held that his claim was barred for failure to show unwelcomeness.⁵⁶ Consider too Mangrum v. Republic Industries, a case in which a female used car sales representative sued her employer, claiming that “foul language, sexual innuendo, and dirty jokes were routine” at her work and created a hostile work environment.⁵⁷ She claimed that although she participated in some of the crude banter, she found it hostile and alleged that a coworker subjected her to verbal and physical sexual assault. The court granted summary judgment to the employer:

While Plaintiff alleges that she did, on some occasions, tell Wilson ‘no,’ her own evidence shows that when she did tell him ‘no,’ she also said such things as “I’m busy,” or “not now,” comments that tend to negate the effect of the initial ‘no,’ making her intentions less than clear.⁵⁸

Or take an earlier case, Dockter v. Rudolf Wolff Futures, Inc.: “Although Plaintiff rejected these [sexual advances], her initial rejections were neither unpleasant nor unambiguous, and gave [her boss] no reason to believe that his moves were unwelcome.”⁵⁹

These court decisions display a pattern of disbelieving victims and reinforce the sexist notion that the lack of a “no” really means “yes.” These cases are not outliers, and courts today still treat with skepticism the claim that behavior was unwelcome if the victim in any way participated in the behavior. Take two more recent cases with less startling facts. In the first, a supervisor emailed an employee an off-color joke, to which she replied, “No offense taken.”⁶⁰ The second case involved a CEO who frequently made flirtatious comments to an employee, hugged her, and took her out for meals. She told him he was a “kind and generous boss.”⁶¹

In both cases, the court held that the plaintiff had failed to meet the unwelcomeness prong and dismissed their cases at the summary judgment stage. In other words, the courts found the plaintiffs’ actions were such that no reasonable jury could ever find that the harassing conduct was subjectively unwelcome. Admittedly, these examples could have instead been dismissed on other grounds,⁶² but to dismiss them on unwelcomeness grounds seems analytically incorrect, regardless of the larger claim’s merits.

Some courts seem to acknowledge the analytical tension that has developed in the unwelcomeness prong, but they still require more than the plaintiff’s mere testimony to survive summary judgment. In Strothers v. City of Laurel, for example, the Fourth Circuit held that unwelcomeness is “not a high hurdle,” but went on to say that “an employee can demonstrate that certain conduct is unwelcome simply by voicing her objection to the alleged harasser or to the employer.”⁶³ Even there, although it acknowledged the problems with asking a plaintiff to prove they found conduct unwelcome, the court put the onus on the employee to speak up at work, rather than on the harasser to refrain from crossing the line in the first place. And it is rarely simple to call out sexual harassment from the person who controls your paycheck.⁶⁴

The evidence necessary to show unwelcomeness, once a dispute arises, can also prove problematic. The Court in Meritor said the plaintiff must have indicated “by her conduct” that the sexual advances were unwelcome.⁶⁵ The Meritor court then somewhat infamously declared that it disagreed with the appellate court’s determination that the plaintiff’s “dress and personal fantasies” had no place in the litigation, and instead held that a complainant’s sexually provocative speech or dress “is obviously relevant” to determining unwelcomeness.⁶⁶ Not all courts take the approaches illustrated in these examples. One interesting, and perhaps unintentionally revealing, set of cases is those that say little, if anything, at all about unwelcomeness. These courts simply move past the unwelcomeness element as soon as they recite it, treating it as sufficiently pled (perhaps because it is simply not a point the defendant contests).⁶⁷

Other courts correctly treat unwelcomeness as a factual dispute when the defendant raises the issue. Consider the Third Circuit in Clegg v. Falcon Plastics.⁶⁸ In Clegg, the plaintiff brought a hostile work environment claim against her supervisor and employer.⁶⁹ Her employer argued that an email she sent her supervisor “asking him to talk dirty to her” was evidence that Clegg welcomed the conduct, but Clegg contended this email was a joke.⁷⁰ Reversing the district court’s grant of summary judgment to the employer, the Third Circuit stated that although Clegg’s conduct raised questions of unwelcomeness, “it does not prove as a matter of law that [she] invited what allegedly followed” because “[t]he inherently subjective question of whether particular conduct was indeed unwelcome presents difficult problems of proof and turns primarily on credibility determinations which are inappropriate for summary judgment.”⁷¹

In the wake of #MeToo, some district courts have been more willing to take this approach. This may reflect a shift in how some courts consider the complex dynamics behind expressing unwelcomeness in the workplace. In the 2020 case Blades v. J & S Professional Pharmacy, Inc., the district court denied summary judgment against the plaintiff even absent any verbal indications of unwelcomeness because, “even though [the plaintiff] did not voice her discomfort, [the defendant] should have inferred as much based on her body language. This factual dispute is best left for a jury to resolve after hearing testimony from witnesses and gauging their credibility.”⁷² Other district courts have made similar moves in the last few years.⁷³ One court went so far as to say at summary judgment that a plaintiff had proven she considered sexual advances unwelcome, even where the defendant contested unwelcomeness.⁷⁴ The analysis there, though, was scant. The defendant argued that her sexual innuendo was not unwelcome because the plaintiff had pursued a friendship with her. The court, however, concluded that the plaintiff had met the unwelcomeness element, stating simply that “she considered the sexual advances unwelcome.”⁷⁵ But these cases remain a minority.⁷⁶

In practice, any fair review of the case law reveals the unwelcomeness requirement has often been used to excuse harassers’ behavior and implicitly blame women for their own harassment, because they in some way participated, permitted, or “asked” for it. For fear of rocking the boat, victims of workplace harassment have tolerated a certain level of unwelcome attention without protest. Yet many courts have wrongly determined that a plaintiff—who admits they participated in or permitted some behavior but still complains they found the conduct subjectively unwelcome—has failed to show a genuine issue of material fact, and have disposed of the claim without allowing it to reach the trier of fact.

C. The Modern State of Unwelcomeness

Certain themes emerge from all this. In some cases, unwelcomeness—even in a problematic legal landscape—is simply uncontested. Consider cases where plaintiffs allege their coworkers constantly made sexual jokes directed at them, and no one disputes that the plaintiff never joined in. In those factual settings, it makes little sense (and would likely strike judges and juries as offensive) to argue that the plaintiff welcomed that behavior. A better strategy from an employer’s point of view may be to agree with the plaintiff’s characterization of the misbehavior. They can then argue that the assault or harassment was not imputable to the employer (if no supervisors participated or were aware of the challenged behavior) or that the plaintiff unreasonably failed to take advantage of internal reporting mechanisms.⁷⁷ In those cases, either a plaintiff pleads the conduct was unwelcome, which is sufficient to reach a jury on that element, or a defendant stipulates to unwelcomeness.

But in those cases where unwelcomeness is contested, there are two categories of cases where the element can produce jarring outcomes:

(1) Ongoing sexual conduct between two people: Some cases present fact patterns with months or years of sexual contact, which the defendant alleges was consensual, between a plaintiff and a defendant coworker or supervisor.⁷⁸ Perhaps the plaintiff was fired and now brings a case alleging they only engaged in sexual contact to keep their job; when the relationship ended, they lost their job.⁷⁹ In many ways, these cases ultimately come down to assessing witness credibility. Some courts dispose of these cases for posing no issue of material fact.⁸⁰ When they do so, these courts make an improper credibility determination on viable harassment claims. It is entirely possible, for example, that a plaintiff’s behavior reflects an understanding that maintaining the relationship was necessary to keep their job—the quintessential quid pro quo claim. Or the plaintiff might perceive other reasons why they might “voluntarily” participate in sexual behavior while still finding it unwelcome, such as workplace power dynamics or fear of reprisal.⁸¹ The dispute almost always poses a credibility issue that should be resolved by the trier of fact.

(2) A hostile work environment where a plaintiff admits they participated in some of the inappropriate conduct: In workplaces where bosses or coworkers use blatantly offensive language or sexual overtures, there may be plaintiffs who brush off the advances or simply do not say “no.” Or perhaps the plaintiff also occasionally makes crude jokes or flirtatious comments to a coworker. Maybe when men make lewd jokes at work, the women respond with jokes of their own or participate in misbehavior in some way. And the court, holding that no reasonable jury could think the plaintiff found this environment unwelcome, throws the case out at summary judgment. These cases present some of the most glaringly obvious examples of courts getting it wrong. It is possible for a jury to find that the plaintiff was “go[ing] along to get along,” despite finding the behavior offensive. This is another example of Meritor’s “voluntary” behavior, which may nonetheless be considered subjectively unwelcome by the complainant. Any solution to workplace sexual harassment’s Gordian Knot must grapple with these types of claims, which are the most obvious casualties of the unwelcomeness element.

II. Title VII’s Anti-Discrimination Provisions Leave Room for a Broader Unwelcomeness Doctrine

The legacy of these cases is plain. When modern courts rely on increasingly outdated precedent to dismiss suits at summary judgment for failure to prove unwelcomeness, the result is an “infinite regression of anachronism.”⁸² But as harassment victims share their experiences and psychological research increasingly provides explanations for why that harassment occurs, the gulf between the doctrinal standards of discrimination and the lived experience of discrimination grows ever larger.⁸³ Judges faced with this concerning trend must ask: Can courts act independently to change a key cause of this divide—the treatment of the unwelcomeness element? This Part argues the answer to that question is yes. Title VII may not have originally been a tool for changing workplace mores,⁸⁴ but when mores have changed in the workplace and a modern jury could recognize a given set of circumstances as sexual harassment and sex discrimination, the legal doctrine need not stagnate and permit harassing conduct to occur under the weight of dated precedent.

This Part first identifies Title VII’s textual justification for rejecting the prior cases’ reasoning, surveyed in the previous Section. It then buttresses that claim by collecting and reviewing social psychologists’ research describing how sexual harassment actually operates at work, paying particular attention to how victims respond to harassment and why requiring proof of clear conduct indicating unwelcomeness lets skeptical courts improperly screen out acts of discrimination.

A. The Textualist Case Against an Outdated Interpretation of Unwelcomeness

The legal landscape outlined above need not continue to propel modern sexual harassment doctrine. The story of sexual harassment law under Title VII has always been one of evolution—reflecting a dialogue between the courts, feminist theorists, legislative action, and changing norms regarding gender equality and workplace conduct. Since Meritor first recognized a sexual harassment claim at the federal level, the Supreme Court has continually refined what constitutes a hostile work environment (one subspecies of a sexual harassment claim);⁸⁵ expanded protections to new classes of plaintiffs,⁸⁶ such as targets of same-sex harassment;⁸⁷ and clarified employers’ liability for their employees’ harassment.⁸⁸ This rich history of reform and ever-changing standards signals an opportunity to take the next step in remedying current doctrine.

The Court’s current move towards textualism, perhaps ironically, also justifies updating the doctrine and ending judicial reliance on the kinds of cases described in the previous Section. The Meritor court unanimously held that sexual harassment is a form of discrimination on the basis of sex, which Title VII already prohibits.⁸⁹ As the Court observed, it is “[w]ithout question” that “when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.”⁹⁰ Meritor is, at least in part, a textualist decision. Compare, for example, the language the Court used more recently in Bostock.⁹¹ The Court similarly said there that “[w]hen an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex.”⁹² For a court that has recently repeated the instruction to “start with the text,” a textual approach has always informed decisions on sexual harassment claims; the Court has never doubted that Title VII’s original prohibition on sex discrimination covered sexual harassment.⁹³

On the other hand, the modern sexual harassment claim does not rest solely on Meritor’s analysis (or analysis of Meritor’s progeny); so, revisiting Meritor’s reasoning as to unwelcomeness need not endanger the whole claim. Whatever commentators may predict the current Court’s members will do with Bostock, Meritor is not an obvious candidate for the present conservative project to revisit.⁹⁴ As explained above, the contemporary legal context,⁹⁵ legislative history, and enacted purposes of the 1991 CRA amendments mean that the modern sexual harassment claim is founded on more than judicially developed doctrine.⁹⁶ The 1991 amendments to Title VII confirm Congress understood it was making compensatory damages available not only to more traditional sex discrimination claims, but to sexual harassment claims as well.⁹⁷ Congress was free to completely carve out from Title VII the then-new category of sexual harassment claims if it so desired, but it did not. Instead, it included and strengthened them by providing a damages remedy. Meritor may remain the seminal case, but it is no longer the strongest basis to argue that Title VII incorporates sexual harassment—the harassment claim is now explicitly built into the text of Title VII.⁹⁸ As Congress stated, “The purpose[] of this Act [is]—(1) to provide appropriate remedies for intentional discrimination and unlawful harassment in the workplace . . . .”⁹⁹ Thus, a judge who might ordinarily be reluctant to take the “pure” textualist approach¹⁰⁰ may find in the method an unexpected ally to protect the sexual harassment cause of action against a revanchist high court.¹⁰¹

Accepting that the text of Title VII is the strongest basis for a workplace sexual harassment claim better demonstrates, without reference to Meritor, why the cases detailed in Part I get it wrong. These problematic sets of cases do not comport with Title VII’s text. Sexual harassment is a species of sex discrimination under Title VII, and unwelcome sex discrimination can occur even though a plaintiff has not explicitly said that they find the behavior distasteful. The requirement of clear outward conduct to prove a person found harassment unwelcome atextually narrows the statute’s express scope of liability.

This text-first approach to sexual harassment creates room for the district courts to push forward the line on unwelcomeness even against the headwind of cases explored in the prior Section. As noted, courts primarily disposed of those cases at the summary judgment stage. The summary judgment standard, however, turns on what a reasonable jury could find, not what past judges have said a reasonable jury could find at the time those opinions were written.¹⁰² Changing public mores, evolving workplace norms, and growing awareness of sexual harassment should all be taken into account to understand that a reasonable jury’s conception of what constitutes unwelcome harassment has shifted. Consider an analogy to tort law; privacy torts must be “highly offensive to a reasonable person.”¹⁰³ But whether an internet privacy violation offends a reasonable person is an ever-evolving standard unsuitable to easy comparison with past precedent, and courts rely on that evolution in public mores to distinguish prior cases.¹⁰⁴ Likewise, in the sexual harassment context, if a reasonable modern jury could see unwelcome behavior (even where a judge or panel did not see unwelcome behavior in a prior case under similar factual circumstances), a contemporary district court judge may rely on the passage of time and a textual approach to Title VII to say that a reasonable present-day jury could nonetheless find the complained-of behavior unwelcome.¹⁰⁵

In sum, Title VII was amended to reflect that Meritor correctly recognized sexual harassment as a form of sex discrimination. Meanwhile, Meritor’s formulation of whether a plaintiff “by her conduct” indicated the conduct was unwelcome¹⁰⁶ has caused courts to look for evidence of consistent refusals, reports to human resources, or evidence of firm and confident rejections. But modern courts should recognize that the umbrella of conduct indicating unwelcomeness includes a much broader range of behavior, such as silent toleration, efforts to avoid the conduct, or even unwelcome participation. If Meritor held that even when the plaintiff’s conduct looks voluntary and participatory, she may still maintain a claim, then courts should not credit at summary judgment a defendant’s evidence of “voluntary conduct” against a plaintiff’s testimony. However, if the Meritor court suggested there must always be some outward, clear indication of unwelcomeness to a contemporaneous observer, that holding was both wrong and far narrower than Title VII’s definition of discrimination.

The following Section collects modern social psychology research to explain why requiring proof of outward conduct indicating unwelcomeness is an atextual judicial gloss on Title VII’s prohibition on sex discrimination. It further provides district courts with the tools to use their power as the trier of fact to conclude that material disputes remain when unwelcomeness is at issue.

B. The Broad Range of Reasonable Conduct That May Indicate Lack of Consent to Unwanted Advances

Modern social psychological research demonstrates that an objective standard of unwelcomeness—or one that requires particular kinds of outward manifestations of unwelcomeness—is inadequate, given the broad range of behavior that victims of harassment may reasonably exhibit.

Start with the simplest point. Many sexual harassment victims share that social pressure to conform to established norms at work can lead them to tolerate inappropriate behavior rather than risk social isolation or backlash.¹⁰⁷ Outside observers do not always acknowledge this invisible social pressure, which helps explain why some people will vastly overestimate the degree to which victims actually confront and report their harassers.¹⁰⁸ In reality, fear of reprisal or the belief that speaking out might jeopardize career prospects—perhaps by being labeled as overly sensitive or disruptive—can contribute to a culture of silence and discourage women from openly confronting harassment.¹⁰⁹ When authority figures are aware of, lead, or encourage a culture of harassment, confrontation is even less likely.¹¹⁰ Non-white or LGBTQ+ individuals may face additional challenges in navigating workplace dynamics. For instance, women of color may encounter racialized and gendered stereotypes that contribute to unique forms of harassment, making it more challenging to navigate and resist inappropriate behavior.¹¹¹

Though the psychological literature describing workplace sexual harassment is surprisingly limited,¹¹² its conclusions are straightforward. Harassment victims may comply with inappropriate, unwanted behavior to avoid confrontation, maintain a sense of belonging, or protect themselves from potential negative consequences.¹¹³ Fear of social exclusion, a desire for approval, or a wish to avoid conflict all increase compliance with behavior that is personally objectionable.¹¹⁴ Far from being passive victims of discrimination, those who experience sexual harassment act as strategic negotiators of threatening situations, or as stress managers actively coping with internal and external forces, employing behavioral and cognitive strategies to withstand the injustices they face.¹¹⁵ To maintain an acceptably cordial relationship with a coworker or boss who they expect to see again tomorrow, targets of harassment may ignore or appease the harasser instead of confronting them.¹¹⁶

The case law of unwelcomeness illustrates this phenomenon, and the literature collected above problematizes the conclusions courts have drawn. Consider a case with particularly severe facts, Reed v. Shepard.¹¹⁷ A female jail employee described why she went along with grossly offensive, harassing conduct by her male coworkers¹¹⁸ and sometimes participated in lewd jokes, sexually suggestive gifts, and foul-mouthed language:

Because it was real important to me to be accepted. It was important for me to be a police officer and if that was the only way that I could be accepted, I would just put up with it and kept my mouth shut. I had supervisors that would participate in this and you had a chain of command to go through in order to file a complaint. One thing you don’t do as a police officer, you don’t snitch out another police officer. You could get hurt.¹¹⁹

The Seventh Circuit said, “that Reed welcomed the sexual hijinx [sic] of her co-workers is strongly supported by the evidence presented at trial,” and affirmed the lower court’s ruling for the defendant employer.¹²⁰

Reed may be an outlier based on the extent of the harassment, but it is not an unusual demonstration of the power dynamics at work or how a court might arrive at an unsound conclusion. It also, perhaps, represents another difficulty: The more a person faces harassment, the less likely they are to report it and the more likely they are to face retaliation.¹²¹ Perhaps this reflects that the more severe and pervasive the harassment, the more the targets of harassment fear reprisals and believe that internal reporting processes will be ineffective. Or perhaps it indicates that normative considerations of what is “acceptable” at work partly depend on what is normalized by day-to-day experience.¹²²

Psychological research thus predicts the unexceptional conclusion that when confronted by sexual harassment in the workplace, many people will not speak up—however unwelcome or unwanted the behavior—because they perceive normative pressures not to respond, face social pressures to be polite, and experience understandable concern about retaliation.¹²³ A person might appear to fully participate in conduct while still feeling subjectively offended by the whole enterprise. But contextual factors, nonverbal responses, silence,¹²⁴ tone, or body language can evince unwelcomeness.

The point is this: As reasonable as these responses are, they are inconsistent with the legal requirement that someone confront harassment directly and provide an outward manifestation of unwelcomeness. Courts have assumed that women, when harassed, must speak up and clearly refuse to engage—but this assumption ignores the basic need to belong, even within a workplace community.¹²⁵ If capitulation to sexual advances is dispositive, a cruel dilemma arises: A victim must choose between opposing the harassment; resigning from their job; or quietly acquiescing, which would prevent legal redress for being put in this position in the first place.¹²⁶ Narrowly applying Meritor’s conduct-indicating-unwelcomeness requirement to encompass only clear, consistent, outward proof will continue to exclude acts of sex discrimination under Title VII unless courts broaden the category of “conduct” to recognize other ways victims can and do display unwelcomeness.

III. A Better Way to Deal with Unwelcomeness

The unwelcomeness standard, as currently interpreted, is outdated and atextually narrows Title VII’s prohibition on sex discrimination. An unwelcomeness element presumes women who report harassment in the workplace must first prove that they did not invite or welcome the harassment. That assumption is untenable.¹²⁷ The burden of proving that someone invited or welcomed conduct in sexual harassment suits properly belongs with the defendant employer.

This Part first presents arguments in support of entirely removing unwelcomeness from the doctrine, as the recently issued EEOC Guidance argued, and ultimately agrees with that approach, although noting its limitations. It then discusses the possibility that unwelcomeness may have also been intended as a notice requirement that is superfluous under current doctrine, further justifying its deletion. Next, it proposes a change to the unwelcomeness doctrine’s underlying assumptions to better reflect Title VII’s purpose and meaning: treating welcomeness as an affirmative defense pled and proved by the defendant.

The final Section argues that, even without changing the formal elements of a claim, district courts have a unique opportunity to change the calculus of power in harassment suits by leveraging their role in making findings of fact. When there is a dispute over unwelcomeness, summary judgment for a defendant based on unwelcomeness should be rare. A plaintiff’s plausible testimonial explanation of their conduct, especially when accompanied by extrinsic or contextual evidence tending to corroborate that testimony, and which, if accepted as true, would establish that they found the conduct subjectively unwelcome, raises a triable issue of material fact inappropriate for summary judgment.

A. Deleting Unwelcomeness

Given unwelcomness’s problematic history as an element and as a doctrine, let us start with an often-proposed solution: eliminate unwelcomeness entirely. That is a plausible start, but even if the term “unwelcomeness” can be safely excised from the doctrine, courts will continue to view plaintiffs’ behavior as relevant when defendants claim that plaintiffs willingly participated in the behavior at issue. The dangers posed by the unwelcomeness inquiry run deeper and require more than a terminology change.

Scholars have questioned the role of unwelcomeness since the early days of sexual harassment law. In 1991, Professor Susan Estrich argued that by using conduct to measure assent, the unwelcomeness requirement “holds women responsible for their own torment.”¹²⁸ Professor L. Camille Hébert has more recently argued that the requirement should be removed entirely and replaced with a simple question of whether the conduct was “subjectively abusive.”¹²⁹ In Hébert’s view, “the remaining requirements of the cause of action are sufficient to prevent women from challenging conduct that they did not find to be offensive.”¹³⁰ The 2024 EEOC Guidance took this tack as well. The Commission preferred to delete unwelcomeness almost entirely, folding it into the question of whether there was a subjectively hostile work environment.¹³¹ The view is, essentially, that when courts evaluate “subjective hostility,” as required by Harris, any evaluation of unwelcomeness is redundant.¹³² In other words, if an act is unwelcome for the purposes of a sexual harassment suit, it is subjectively hostile, and vice versa.

As these commentators point out, though, the danger of unwelcomeness as an independent element of a claim is more than just redundancy. Primarily, the way the courts frame evidence of unwelcomeness can foster skepticism around victims’ stories.¹³³ And as a result, some courts are too quick to make improper credibility determinations at summary judgment.¹³⁴ It is helpful to read the 2024 EEOC Guidance with this danger in mind.

To be clear, courts should adopt the former 2024 EEOC Guidance’s reasoning to clarify that unwelcomeness ought not to exist as a freestanding element. Merging “unwelcomeness” and “subjective hostility” is clearer because it does not ask the same question twice. It would also normatively shift the assumption about what a plaintiff’s initial case must plead and prove, subconsciously changing how judges think about a plaintiff’s burden.¹³⁵

An issue remains even after implementing the proposed change. If the two inquiries—unwelcomeness and subjective hostility—are functionally the same question, deleting unwelcomeness may simply shift skepticism about victims’ stories, currently built into unwelcomeness case law, into subjective hostility. The underlying skepticism itself remains unaddressed. Thus, the EEOC’s approach removes the normative assumption that a plaintiff must plead and prove unwelcomeness but does not actually solve for unwelcomeness’s underlying danger: courts discrediting at summary judgment plaintiffs’ viable claims when defendants bring forward evidence of a plaintiff’s participatory conduct. As the EEOC’s analysis seems to suggest, merely changing the question from “did the plaintiff consider the conduct unwelcome” to “did the plaintiff consider the conduct subjectively hostile” probably does little as a functional matter.¹³⁶ However the question is phrased, it asks whether the complained-of conduct was unwanted. That question poses the danger that courts will too quickly dismiss claims for lack of clear, consistent, or “objective” evidence of unwelcomeness or subjective hostility.

So, although it would be clearer to combine the inquiries, the lower courts must still address unwelcomeness’s dangers, whatever a claim’s exact formulation. Whether a court calls the question one of unwelcomeness or subjective hostility, this Note proposes reframing the underlying logic that would apply in any circuit.

B. Removing a Hidden Notice Requirement

Deleting unwelcomeness as an element does not only create a normative benefit, it also eliminates a procedural harm: Requiring proof of unwelcomeness creates a hidden and redundant notice requirement.

The Supreme Court may have had another unstated rationale in mind when it asked for proof of conduct showing unwelcomeness: notice to the harasser. Meritor predated the employer liability cases, and, there, the Court dodged the question of employer liability.¹³⁷ Plainly on the Court’s mind, though, was employers’ vicarious liability when a supervisor harassed an employee.¹³⁸ The Meritor court may have reasoned that it would be unfair to hold an employer vicariously liable for the acts of a supervisor if the supervisor reasonably believed that his overtures were welcome.¹³⁹ But that was then, and this is now, with the benefit of almost forty years of subsequent case law.

Under current doctrine, notice plays a different role. Employer liability now largely turns on whether the harasser was the plaintiff’s supervisor. If the harassing individual was a supervisor, and the supervisor effected a tangible employment action like firing or demotion, then the employer is strictly liable for that conduct, regardless of notice to the employer. In this case, the supervisor is treated as the employer.¹⁴⁰ If a supervisor’s harassment results in a hostile work environment rather than a tangible employment action, the standard includes reasonableness considerations. The employer is vicariously liable unless it can prove that (1) it reasonably tried to prevent and promptly correct the harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities the employer provided.¹⁴¹ An employer is still liable for harassment by nonsupervisory employees if it knew or should have known about the harassment and failed to take prompt and appropriate corrective action—a notice and negligence standard.¹⁴²

Thus, if unwelcomeness was meant to be Meritor’s notice requirement—insisting on outward conduct in part to put harassers on notice for their unwanted behavior—it should not have survived the employer liability cases, which created a different standard. An employer who has no notice that the plaintiff perceived an apparently consensual sexual relationship with a coworker¹⁴³ to be unwelcome may have a winning and separate defense that they did not know, and could not have known, about the harassment.¹⁴⁴ In this narrow hypothetical, the employer does not need double layers of notice protection by a separate requirement that the plaintiff outwardly showed the conduct was unwelcome at the same time they were being harassed.¹⁴⁵

Under this understanding, the only slightly difficult case would be one in which the supervisor taking a tangible employment action argues that he reasonably believed that his overtures were welcome because he never perceived any conduct indicating otherwise. However, if a jury found that the overtures were unwelcome, the employer could be strictly liable for the harassment—even if neither the employer nor the supervisor effectively had “notice” of the plaintiff’s conduct. That might seem odd to some readers. But how likely is that case to occur?

Given the broad categories of conduct that could indicate unwelcomeness, it is tough to imagine the real-life plaintiff who never hemmed and hawed, never tolerated an unwanted overture in the hopes that it would go away, never changed the subject, never sought to avoid their harasser, and never stayed silent. Or the plaintiff, who, despite not wanting to, responded so enthusiastically to her boss asking her out on a date that he never doubted for an instant his conduct was welcome. Most, if not all, plaintiffs will be able to present testimony that they sought in some way to brush off unwanted advances: avoiding the person in the hopes they take the hint, being polite but no more, or any number of other cues. The supervisor who does not understand or willfully ignores those hints rightly exposes his employer to potential liability for continuing to make advances in the face of an unenthusiastic response.¹⁴⁶ Recall that the behavior at issue must already be objectively severe or pervasive and objectively hostile to establish liability—not just a single instance of asking someone on a date or telling a crude joke. For those employers who are worried about that legal exposure, it may well be a good thing if they elect to mitigate their liability by banning supervisors from initiating relationships with the people they supervise, or otherwise create nonfraternization policies that go beyond what Title VII requires, as some workplaces already have done.¹⁴⁷

It is also simply not the case that clear outward conduct must always occur for a perpetrator to have notice that his conduct is inappropriate. Harassers, after all, often operate under conditions that permit, encourage, and normalize their behavior.¹⁴⁸ “Boys’ clubs” at work not only create professional opportunities for men, but also create perceptions of power and solidarity that permit sexual harassment to go unpunished.¹⁴⁹ The approach-inhibition theory predicts that those who experience subjective feelings of power will be more likely to exhibit disinhibited behavior, including sexual gratification and harassment.¹⁵⁰ A subjective sense of power enables harassers by permitting them to act on antisocial instincts. Harassers often know or should know that their conduct is inappropriate; they merely choose to ignore norms and rules that would otherwise prevent that conduct. The above scenario inherently contemplates a supervisor who conducts a sexual relationship with a subordinate and then fires them. Most reasonable observers can immediately spot a problem, regardless of whether the supervisor was “told” that his conduct was unwelcome. By creating a hidden notice requirement, unwelcomeness is redundant not only with the subjective hostility inquiry, but also with the notice already built into the employer liability defenses. Removing unwelcomeness as an independent element may not solve all issues underlying this inquiry, but it helps reduce the risk of a double-notice requirement screening out valid claims.

C. Recasting “Welcomeness” as an Affirmative Defense

Assuming that unwelcomeness should be discarded as an independent element of a claim, where does that leave a defendant seeking to argue that a plaintiff did not actually find the behavior unwelcome or hostile? In short, this defense can stay, but the defendant is responsible for raising it. The unwelcomeness element has taken on an outsized role in sexual harassment cases. The true “gravamen” of a sexual harassment complaint should be the inappropriate, offensive behavior that has brought a victim to sue in federal court. Properly understood, Meritor’s discussion of unwelcomeness makes two relatively basic points: First, actionable sexual harassment is necessarily unwelcome, which is why when unwelcomeness is undisputed, it is accepted as true.¹⁵¹ And second, questions of fact sometimes arise about whether allegedly harassing conduct was indeed unwelcome.¹⁵²

Thus, proof of welcomeness effectively already operates as an affirmative defense; disputes about unwelcomeness do not arise unless the defendant brings them up.¹⁵³ Welcomeness, then, should be explicitly treated as an affirmative defense in the doctrine.¹⁵⁴ The burden to rebut a presumption of unwelcomeness established by the complaint should lie with the defendant, who must plead in response that the conduct was, in fact, welcome and produce evidence to that point.¹⁵⁵ In practice, at this stage, a plaintiff will almost always present in rebuttal her own testimony that she unwillingly permitted or participated in some behavior for a variety of social and psychological reasons. Beyond her testimony, she can also provide evidence of contextual social pressures, provide witnesses who can corroborate her response, and call the court’s attention to social psychology research.¹⁵⁶ These forms of proof should be more than sufficient to create a material issue of fact that survives summary judgment.

This change may not do a lot of work on its own. It does, however, respond to concerns about the normative framing and underlying assumptions of a plaintiff’s prima facie case.¹⁵⁷ If courts approach unwelcomeness as an element to be affirmatively proven, they place the onus on the plaintiff to produce evidence to that effect.¹⁵⁸ By explicitly not requiring anything more than a pleading stating the plaintiff found the conduct unwelcome, courts can reframe the element to presume and accept, as an initial matter, that the plaintiff found this conduct offensive.

D. Unwelcomeness Requires Credibility Determinations

Independent of whether unwelcomeness is formally listed as an element, a district court’s most potent ability to change the current state of affairs is in its role as the trial court and finder of fact—and the corresponding ability to identify material disputes of fact that survive summary judgment.¹⁵⁹ Since few sexual harassment cases ever reach trial,¹⁶⁰ the critical points of these cases are functionally: (1) at summary judgment, when courts decide which issues, if any, raise genuine disputes of material fact and (2) during settlement negotiations, where the odds of liability affect the parties’ leverage.¹⁶¹ The court’s factfinding role at summary judgment can change the calculus of a sexual harassment suit. In cases where a defendant disputes unwelcomeness, a trial court should recognize that credibility determinations of relevant witnesses are necessary to evaluate whether a defendant is telling the truth when they claim a plaintiff was an equal, willing, enthusiastic, unoffended, and consensual participant in the conduct at issue. A plaintiff’s mere participation in that conduct, although sometimes relevant to liability or damages,¹⁶² should not be sufficient to dismiss a claim at summary judgment. The dispute should almost always reach the trier of fact.¹⁶³

Many courts have improperly preempted these determinations. Even where outward behavior manifesting unwelcomeness seems scant, psychological research tells us that these are still fundamentally questions for juries.¹⁶⁴ There is a limit to how much getting to a jury solves the problem of not believing women who report harassment, of course.¹⁶⁵ But this is not to say that a jury’s credibility determination will be a fifty-fifty coin flip. In explaining why this should not be referred to as merely a “he said, she said” situation, Professor Lois Shepherd argues:

Our usual talents and methods for determining credibility do not simply vanish when we need to assess allegations of sexual activity behind closed doors. Motives to tell the truth or to lie still matter. We can still judge speakers’ patterns of honesty or dishonesty, the directness versus slipperiness of their answers and their recall of detail versus complete lack of memory.¹⁶⁶

Additionally, when judges dismiss claims on unwelcomeness grounds, they are deciding what conduct is unwelcome in the workplace based on their own, more limited experience, rather than permitting juries to bring their larger host of lived experiences to decide what conduct is unwelcome.

Take Souther v. Posen Construction, Inc., where a plaintiff allegedly had a five-year affair with her boss.¹⁶⁷ The plaintiff sued when the relationship soured and she was laid off at the end of the construction season. The record showed that her boss initiated the affair.¹⁶⁸ The plaintiff testified that she felt she would lose her job if she refused to have sex with him, and indeed, did lose her job during the same time that he started acting differently toward her.¹⁶⁹ After her layoff, which she claimed was a pretext for wanting to end the relationship, he did in fact end the relationship.¹⁷⁰ Due to an extensive record of long-term sexual contact between the two, both the district court and court of appeals held there was sufficient evidence to find that the defendant’s conduct was not unwelcome as a matter of law and dismissed the case at summary judgment.¹⁷¹

The Souther court should not have dismissed her claim so readily. While raising questions about credibility, and perhaps damages, her testimony could have been accepted as true by a jury. If we imagine a slimmed-down example where a female employee dates her male boss for years, is fired, and then brings a sexual harassment suit alleging that she only dated him because she understood that her professional career depended on this relationship, any defense of welcomeness should properly be left to the jury. Regardless of any evidence suggesting an apparently consensual relationship, a reasonable jury could still find that the power imbalance and supervisory relationship between these two people created an environment in which the plaintiff found the conduct subjectively unwelcome despite their apparently willing participation.

Thus, under a version of the unwelcomeness inquiry that aligns more with Meritor’s original caution against accepting voluntariness as dispositive, unwelcomeness should not preclude a plaintiff from arguing that they went along with sexual jokes or commentary, participated in fraternity-like antics, laughed at a joke, or engaged in sexual activity to avoid rocking the boat or to keep their job, as the plaintiff did in Souther. The need to “go along to get along” at work, and mere evidence that a plaintiff has participated in behavior similar to the behavior that they complain of—properly understood in the context of psychological pressures and the wealth of examples from #MeToo—should rarely bar a plaintiff from reaching the finder of fact.¹⁷²

These examples illustrate that there is no single “correct” way for a plaintiff to respond to harassment in order to convince a jury that she found the conduct unwelcome. The jury’s finding considers the totality of the circumstances¹⁷³ and is established by a preponderance of the evidence.¹⁷⁴ A jury might consider several factors in evaluating the plaintiff’s response to the challenged conduct: whether they appeared to participate enthusiastically or instead capitulated reluctantly through silence, hesitation, or nonverbal cues; whether they initially refused but later acquiesced; whether the conduct they participated in differed significantly from the conduct they later challenged; whether they expressed offense at the behavior; and whether they ever reported the harassment to anyone, formally or informally. A jury might also consider contextual information about the workplace that tends to corroborate or contradict a plaintiff’s testimony, such as: whether there is a power imbalance between the plaintiff and defendant; whether the defendant has regular contact with the plaintiff or whether they never interact at work; whether the plaintiff might reasonably perceive the defendant to be able to affect her workday in any way; whether the workplace operates as a “boys’ club” or other culture that tolerates harassment; or whether there is a history of this particular defendant harassing other coworkers. Other relevant information might include: how the plaintiff and defendant respond on the witness stand; whether the parties had a preexisting relationship; whether the defendant persisted even after receiving a negative response; whether each party’s testimony changed over the course of the litigation; or whether any other witnesses can corroborate the plaintiff’s or defendant’s testimony.¹⁷⁵ The list could go on.¹⁷⁶

How a jury might consider these factors could impact the plaintiff’s relief in different ways. Evidence of apparently noncoerced, voluntary, and “participatory” behavior by a plaintiff may affect settlement negotiations, damages, or the jury’s credibility determination, but it should not bar that plaintiff at summary judgment. In addition to the earlier Souther example, which demonstrates a quid pro quo sexual relationship, consider a hostile work environment: a plaintiff who reports that she has been the target of a constant stream of sexual harassment over text message (such as sexual jokes, innuendo, and “joking” solicitations of sexual acts). She claims damages for emotional distress, and the evidence shows that she responded to many of those texts with her own jokes or innuendo. Could a jury still believe that the plaintiff subjectively found the conduct offensive but nonetheless went along with it for the sake of not rocking the boat, or because she understood it to be a condition of her employment? With the benefit of expert evidence or personal experience, a jury absolutely could—making the case unfit for summary judgment. In practice, a plaintiff’s participation in a hostile work environment would not definitively overcome summary judgment and might only be a factor in determining liability. However, it may affect a plaintiff’s settlement negotiations: Evidence of participation might cause a jury that sides with the plaintiff to then award a smaller damages amount. For example, it may be more difficult to claim significant emotional distress from jokes that a plaintiff admits making on many occasions.¹⁷⁷

Or take another factor: the difference between a plaintiff’s behavior and the behavior they complain about. That difference might not be relevant to only a jury’s credibility assessment; it may also determine, as a threshold matter, whether the plaintiff’s behavior is admissible on unwelcomeness at all. Consider Powers v. Chase Bankcard Services, where women complained of a male coworker’s crude behavior toward his female colleagues.¹⁷⁸ In response to the defendant’s claim that one woman had participated in the culture of harassing conduct (and therefore, that it was not unwelcome), the court noted, “Plaintiffs complain of behavior significantly more severe and different from that in which they admit participating . . . . The fact that Powers once flicked a rubber band at Collins does not remove her ability to be offended by constant rubber band flinging at her breasts and buttocks.”¹⁷⁹ If a plaintiff’s conduct is very different from the conduct they complain of, their own behavior may be inadmissible at trial or may result in a court finding no genuine dispute of fact on unwelcomeness in the plaintiff’s favor.¹⁸⁰ When the evidence is admitted and the question reaches a jury, that difference in the conduct’s severity may lend credibility to a plaintiff who argues that they were an unwilling participant. Ultimately, all a jury must determine is that at least some part of a plaintiff’s testimony is true and that at least some unwelcome sexual harassment occurred. If any liability is found against the defendant, a jury can use all the information it has gathered to set damages accordingly.

Conclusion

The modern sexual harassment claim remains bogged down in case law that reaches atextual results. Courts have improperly disposed of viable discrimination claims at the pretrial stage, failing to recognize discrimination for what it is. Unwelcomeness in its current form is a judicial gloss that weakens Title VII’s protection and unfairly penalizes plaintiffs who have reasonable and rational responses to workplace harassment. The mere tolerance of discriminatory actions does not negate nor welcome that discrimination. Nor does the text of Title VII obligate plaintiffs to speak up to prove they did not want to be harassed. Given the unwelcomeness requirement’s flawed history, district courts should open the courthouse doors to plaintiffs who deserve a chance to be heard by juries of their peers—many of whom may hear, in a plaintiff’s testimony, stories that ring true.

* J.D., Class of 2024, University of Michigan Law School. My thanks to Rebecca Eisenberg, Zach Fasman, Nina Mendelson, Jen Salvatore, the Student Scholarship Workshop, and the Notes Office and Editors of the Michigan Law Review for their edits, suggestions, and time. I developed the earliest outline of this piece when working for the team at Salvatore, Prescott, Porter & Porter, who I thank for their mentorship. Shout out to my wife, Dr. Lilia Christner, who offered moral support through each draft. Any errors are my own.