This article considers the unwelcomeness requirement of the plaintiff’s prima facie case. In particular, it examines the discussion of unwelcomeness found in the decision of the Supreme Court in Meritor Savings Bank v. Vinson, and the content given to this element by the subsequent decisions of lower courts. Such an inquiry reveals several parallels between the approach of courts to sexual harassment claims and their traditional treatment of the criminal offense of rape. The same biases and erroneous assumptions that have hampered an effective response to the physical violation of women have permeated the application of the purported remedy for their psychological violation on the job. The effectiveness of potential remedies for this unfairness should be evaluated in light of the underlying reasons for the errors made to date by the courts. If the framework ultimately chosen for proof of hostile environment sexual harassment claims is constructed in a manner that recognizes the reasons behind the reality of women's experiences at work, it may have transformative potential not only for discrimination claims under Tide VII, but for the treatment of rape by the criminal law.
Hostile Environent Sexual Harassment Claims and the Unwelcome Influence of Rape Law,
Mich. J. Gender & L.
Available at: http://repository.law.umich.edu/mjgl/vol3/iss1/4