In order to prove a case of sexual harassment, whether quid pro quo harassment or hostile work environment harassment, the plaintiff must show that the harasser’s conduct was unwanted. It is important to understand that even if a victim’s sexual conduct was voluntary, this does not mean that the sexual advances were welcome or wanted.

In Meritor Savings Bank, FSB v. Vinson (1986) 477 U.S. 57, the United States Supreme Court examined whether voluntary sexual intercourse could be considered an “unwelcome” sexual advance, and found that it could. The Court explained that even though sex-related conduct may be voluntary in the sense that the victim was not raped or physically forced to participate against her will, a victim’s voluntary participation is not a defense to a sexual harassment claim. The correct inquiry is whether the victim, by his or her conduct, indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.

The question of whether particular conduct was indeed unwelcome can be difficult for a victim to prove at trial, but can be equally difficult for an alleged harasser to disprove at trial. The United States Supreme Court has recognized that proving whether sexual advances were welcome or unwelcome turns largely on credibility determinations made by the trier of fact. However, it is certain that the alleged harasser cannot rely merely on the premise that the sexual acts were consensual; the issue is whether the acts were welcome or not.