Proving that sexual harassment is 'unwelcome' can put victims' conduct on trial

 Posted on October 13, 2021 in Sexual Harassment & LGBTQ Rights

In 1986, the Supreme Court issued a landmark ruling in the history of American sexual harassment law. In Meritor Savings Bank v. Vinson, the Court ruled for the first time that when workplace sexual harassment creates a "hostile work environment," it is a form of illegal employment discrimination under federal law.

Only 'unwelcome' sexual harassment is against the law

But the Meritor decision also introduced a term that has challenged plaintiffs in sexual harassment lawsuits ever since. In order for sexual harassment to be illegal, it has to be "unwelcome." In many cases, this puts the plaintiff's behavior in the spotlight, particularly if she is a woman. Questions that the defendant might pose include:

• What kind of clothes did the plaintiff wear to work? Did she wear low-cut tops and short skirts?
• Did the plaintiff clearly tell the perpetrator that they did not want to be harassed every time it happened?
• Did the plaintiff ever discuss sex or sexually charged matters with the defendant?

Thus, the case might focus less on what the defendant allegedly did and more on the victim's conduct - even though they are not the one on trial or accused of creating a hostile work environment. Under this standard, even a hint of accepting or encouraging the harassment from her boss, manager or co-worker can put a harassment claim in jeopardy.

The power dynamics harassment victims often live with

That's because requiring victims to police their behavior so closely misses the power dynamics that are usually in play. Sexual harassers tend to prey on subordinates and can fire them if they strongly resist. Victims are aware of this and often must walk a fine line between resisting requests (or demands) for sex while also trying to avoid punishment like getting fired or demoted. Many sexual harassment victims cannot afford to lose their job.

Still, in the decades since Meritor, employment law attorneys have learned how to build a compelling case of harassment.