In examining the nature of sexual harassment claims, the author challenges the use of the "unwelcomeness" element to distinguish actionable conduct from nonactionable conduct. The author contends that the "unwelcomeness" element demeans women in two ways: (1) it assumes the male perspective and presumes that the plaintiff appreciated the challenged conduct unless she proves otherwise; and (2) it allows the defense to engage in intrusive, irrelevant, and damaging inquiries as it attempts to refute the plaintiff's allegation that the challenged conduct was unwelcome.
The author argues for three reforms. First, courts should shift the burden of proving that the challenged behavior was unwelcome from the plaintiff to the defendant, making "unwelcomeness" an affirmative defense rather than an element of the plaintiff's prima facie case. Second, in order to curb the defense's ability to attack, embarrass, or stigmatize the plaintiff courts should more narrowly define what is "relevant" evidence pursuant to Rules 401 and 402 of the Federal Rules of Evidence. Finally, courts should diligently apply the procedural protections contained in the Federal Rules of Evidence and the Federal Rules of Civil Procedure to avoid admitting embarrassing prejudicial, and ultimately irrelevant evidence.
Title VII Quid Pro Quo and Hostile Environment Sexual Harassment Claims: Changing the Legal Framework Courts use to Determine Whether Challenged Conduct is Unwelcome,
U. Mich. J. L. Reform
Available at: https://repository.law.umich.edu/mjlr/vol34/iss4/5