As courts refine the theory underlying sexual harassment and sex discrimination, the unwelcomeness inquiry may become irrelevant to determining whether gender-based conduct is sexually harassing. In addition, the one possible remaining purpose that the unwelcomeness requirement may serve-providing notice to a putative harasser or its employer-is now served by an affirmative defense applicable to many sexual harassment claims. Consequently, its role should be reexamined. This Article does that. Part I of the Article describes a hypothetical situation 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 is applied to sexual harassment claims. Part IV analyzes the uneasy and incompatible relationship between the unwelcomeness requirement and sexual harassment jurisprudence. Part V resolves the tension between unwelcomeness and sexual harassment jurisprudence by advocating that the unwelcomeness requirement be jettisoned, but that evidence of welcomeness be used in some cases to help determine damages.
Henry L. Chambers, (Un)Welcome Conduct and the Hostile Work Environment, 53 Ala. L. Rev. 733 (2002).