For any conduct to be actionable sexual harassment, it is critical that the conduct be unwelcome by the alleged harassee (victim). Sexual-harassment law does not in any way prohibit consensual sexual conduct that originates or takes place at the workplace.
As a practical matter, the unwelcomeness issue often arises where an employee attempts to demonstrate that, based on the harassee’s conduct, the alleged harassment was not unwelcome.
Example: A female claims that she was harassed by male employees constantly telling sexually explicit jokes in her presence at the workplace, but the employer is able to provide evidence that the female employee herself often told her own sexually explicit jokes to male employees.
More difficult issues of unwelcomeness sometimes arise where an employee claims that she was offended by sexual comments or actions by one or more male employees, but she never explicitly advised the male employees that she objected to their conduct and made no efforts to break off allegedly offensive conversations involving such comments: for example, walking away when the conduct occurred.
Additionally, in determining whether a harassee found sexual comments or actions to be unwanted, only the harassee’s workplace actions should be considered, and not what types of things she does outside the workplace. If the female worker had worked as a stripper it does not mean sexual comments are welcome in the workplace. The employee still has the right to be free from sexual comments and propositions while at the workplace unless her conduct at the workplace indicated that such comments were welcomed by her.
A final point about unwelcomeness is that there is a distinction between “welcome” sexual conduct and “voluntary” sexual conduct. Specifically, the fact that a harassee voluntarily engages in sexual conduct with a harasser is not held by courts to establish that the sexual conduct by the harasser was welcome.
Example: In the Meritor case found in your text, the employer was found liable for creating a hostile environment based on the evidence that included the harasser and the harassee engaging in sexual intercourse on number of occasions. Even though the harassee was found to have voluntarily engaged in the sexual acts with the harasser, the harasser’s actions of initiating the sexual acts were found to be unwelcome because the only reason the harassee agreed to participate was that she reasonably feared that she would lose her job if she refused.