The unwelcome requirement in sexual harassment: choosing a perspective and incorporating the effect of supervisor-subordinate relations.

• Author: Ramsini, Larsa K.

TABLE OF CONTENTS INTRODUCTION I. HISTORY OF THE HOSTILE ENVIRONMENT CAUSE OF ACTION AND THE PURPOSE OF THE UNWELCOME REQUIREMENT A. The Hostile Environment Cause of Action Under Title VII B. Purpose of the Unwelcome Requirement II. THE SYSTEM AND ITS CRITICISMS A. Current Tests for Unwelcomeness B. Criticism of the Unwelcome Requirement 1. Presumptively Welcome vs. Presumptively Unwelcome 2. Plaintiff's Conduct vs. Accused's Conduct 3. Putting the Plaintiff on Trial 4. Redundancy of the Unwelcome Requirement 5. The Effect of a Power Differential III. RECOMMENDED FRAMEWORK FOR UNWELCOMENESS A. Different Perspectives of the Unwelcome Requirement 1. Plaintiff's Subjective Perspective 2. Reasonable Plaintiff Perspective 3. Accused's Subjective Perspective 4. Reasonable Accused Perspective 5. Choosing a Perspective B. Research on Supervisor-Subordinate Relations C. Recommended Framework D. Framework's Response to Five Common Criticisms of Unwelcomeness. CONCLUSION INTRODUCTION

Sarah had been working with Andrew as her immediate supervisor for one year. Sarah was known around the office for making sexually explicit jokes with her coworkers, both male and female. She never made such jokes with Andrew or any other supervisor. One day, Andrew began directing sexually explicit jokes at Sarah, and he continued this conduct for several months. Although Sarah never laughed or verbally responded to Andrew's jokes, she sometimes smiled in response. Sarah never filed a complaint with human resources or spoke to anyone about her supervisor's new behavior. If she were to later file a complaint with the Equal Employment Opportunity Commission (EEOC) and then sue her employer because of Andrew's conduct under a hostile environment theory, most courts would require Sarah to prove that Andrew's conduct was "unwelcome."

In fiscal year 2012, 7,571 charges of sexual harassment were filed with the EEOC, and the EEOC found reasonable cause in 676 cases. (1) Despite the prevalence of sexual harassment claims, the federal courts of appeals still have vague and diverging standards on how Sarah would prove that Andrew's conduct was unwelcome. The unwelcome requirement has been subject to much criticism since the Supreme Court held in 1986 that a hostile environment claim is cognizable under Title VII of the Civil Rights Act of 1964 (Title VII). (2)

Courts can analyze whether conduct is unwelcome from multiple perspectives: (1) the subjective plaintiff--whether this particular plaintiff perceived the accused's (3) conduct as unwelcome; (2) the reasonable plaintiff--whether a reasonable person in the plaintiff's position would perceive the accused's conduct as unwelcome; (3) the subjective accused--whether this particular accused person knew that the plaintiff did not welcome (4) his (5) conduct; or (4) the reasonable accused--whether a reasonable person in the accused's position would have known that the plaintiff did not welcome his conduct.

The Supreme Court has not been clear on which perspective courts should apply in the unwelcomeness inquiry, and the federal courts of appeals have consequently developed unclear and conflicting standards. This Note analyzes the unwelcome requirement from each of the above perspectives and concludes that the reasonable accused person perspective is most productive in eliminating sex-based discrimination from the workplace.

This Note then outlines research in social science on supervisor-subordinate relations and concludes from such research that it is unreasonable for a supervisor to believe that his subordinate welcomes severe or pervasive conduct that can reasonably be perceived as creating a hostile or abusive work environment. Accordingly, this Note advocates for the following framework when the alleged harasser was the plaintiff's supervisor at the time of the harassment: The court should presume that the accused's conduct was unwelcome and not require the plaintiff to prove unwelcomeness as part of her prima facie case. The defendant-employer may then have an affirmative defense that the plaintiff welcomed the accused's conduct by unambiguously soliciting or inviting the behavior through verbal communication between the plaintiff and the accused. Courts should analyze such evidence from the perspective of the reasonable accused.

This Note proceeds in three parts. Part I describes the two theories under which an employee may bring a sexual harassment claim under Title VII, the elements of the hostile environment cause of action, and the purpose of the unwelcome requirement within the sexual harassment context. Part II recounts the inconsistent and sometimes vague tests that the courts of appeals have developed for determining whether the unwelcome requirement is satisfied. This Part also describes five criticisms of the requirement that this Note's proposed framework subsequently addresses.

Part III analyzes four different perspectives from which courts can view the unwelcome requirement and ultimately chooses the reasonable accused perspective as the most productive in serving the purposes of the unwelcome requirement and Title VII generally. This Part focuses on the substance of the requirement--how courts should analyze unwelcomeness in hostile environment cases. Part III also determines which party must bear the burden--the plaintiff or the defendant-employer--of proving welcomeness or unwelcomeness when the accused was the plaintiff's supervisor at the time of the alleged harassment. Applying research in supervisor-subordinate relations to the reasonable accused perspective of the unwelcome requirement informs this analysis and leads to an empirically grounded framework for courts to apply in supervisor-subordinate hostile environment cases.

This Note adds two new elements to current scholarship on the unwelcome requirement. First, this Note analyzes the four possible perspectives of the unwelcomeness inquiry in order to arrive at a perspective that is not redundant of any other element of the hostile environment claim and best serves the purposes of the requirement and Title VII generally. No work thus far has analyzed the requirement in such a manner. Second, this Note applies studies looking particularly at the relationship between supervisors and subordinates, not simply males and females, to the unwelcomeness perspective found to be the most productive. Only after analyzing all of the possible perspectives and applying data about supervisor-subordinate relations does this Note advocate for shifting the burden to the defendant-employer to prove welcomeness. Other commentators have recommended shifting the burden to the defendant, but this Note advocates for such a shift only in the supervisor-subordinate context. The burden-shifting advocated for here is limited to contexts in which it is unreasonable--based on how people interact in the workplace--for the accused to believe that the plaintiff welcomed his conduct. No work thus far has advocated for a shift in the burden of proof for this element in only a particular class of cases.

It is important to return to this topic today, twenty-eight years after the Supreme Court held that hostile environment claims are cognizable under Title VIII, because the courts of appeals still have inconsistent standards for what a hostile environment plaintiff must prove, new data has emerged on supervisor-subordinate relations, and in two 2013 opinions the Supreme Court made it more difficult for employment discrimination plaintiffs to proceed to trial and recover damages. The Supreme Court recently held in Vance v. Ball State University that for purposes of an employer's vicarious liability under Title VII, a "supervisor" is someone "empowered by the employer to take tangible employment actions against the victim," not simply one who has the power to "direct another's work." (6) The Court also held in University of Texas Southwestern Medical Center v. Nassar that when the plaintiff alleges that her employer retaliated against her for complaining of discrimination, she must prove that the retaliation was the "but-for" cause of the adverse employment action taken against her, and not simply a motivating factor. (7) Because these recent decisions make it more difficult for employment discrimination plaintiffs to recover, now seems like an appropriate time to analyze what has been perceived as yet another roadblock most courts of appeals have placed on a plaintiff's path to recovery for conduct creating a hostile work environment: the unwelcome requirement.

1. HISTORY OF THE HOSTILE ENVIRONMENT CAUSE OF ACTION AND THE PURPOSE OF THE UNWELCOME REQUIREMENT

   1. The Hostile Environment Cause of Action Under Title VII

      Title VII prohibits employers from discriminating in certain contexts on the basis of race, color, religion, sex, or national origin. (8) Congress did not explicitly mention sexual harassment in Title VII. The EEOC, however, created guidelines for sexual harassment in 1980 stating that harassment based on sex is a violation of Title VII. (9) The EEOC guidelines are not binding on courts, but the Supreme Court finds them to "constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." (10) In 1986, the Supreme Court held in Meritor Savings Bank, FSB v. Vinson that a "hostile environment" claim is cognizable under Title VII. (11)

      Plaintiffs can bring a claim of sexual harassment under two theories: quid pro quo and hostile work environment. (12) Under a quid pro quo theory, the plaintiff must show that the accused "explicitly or implicitly conditioned] a job, a job benefit, or the absence of a job detriment, upon an employee's acceptance of sexual conduct." (13) Under a hostile environment theory, the plaintiff need not show economic harm resulting from the discrimination; (14) the plaintiff must show only that the accused's conduct was severe or pervasive enough "to alter the...