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

Authors

Collin Christner, University of Michigan Law School

Abstract

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.

Recommended Citation

Collin Christner, Unwelcomeness Reconsidered: Adapting Sexual Harassment Law in the Long Wake of #MeToo, 124 Mich. L. Rev. 941 (2026).
Available at: https://repository.law.umich.edu/mlr/vol124/iss6/3