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The EEOC's new guidance provides important clarification on how unwelcomeness relates to the required showing that alleged harassment was both subjectively hostile to the victim and objectively hostile to a reasonable person. While these are distinct elements of a hostile work environment claim, the guidance suggests they often overlap in practice.
Subjective Hostility and Unwelcomeness
Harassment must be subjectively abusive to the individual victim. This means they perceived the conduct as hostile or abusive and it was unwelcome to them. The guidance states that, in most cases, showing the harassment was subjectively hostile will also demonstrate unwelcomeness:
"In the Commission's view, demonstrating unwelcomeness is logically part of demonstrating subjective hostility. If, for example, a complainant establishes that a series of lewd, sexist, and derogatory comments based on sex were subjectively hostile, then those comments also would be, by definition, unwelcome."
The victim can show subjective hostility by credibly testifying that they found the harassment upsetting, or through evidence that they complained about it to the employer, coworkers, friends or family around the time it occurred. While contemporaneous complaints are helpful evidence, they are not required. The EEOC recognizes many victims are deterred from speaking out due to fear of retaliation or belief that complaints will be futile.
Context is key here too. Conduct that may seem ambiguous or trivial to an outsider could be deeply offensive to the victim based on their personal history and identity. For example, sexual come-ons that young men might welcome (or even encourage) could be threatening to women who have experienced sexual violence. A victim's efforts to "go along to get along" in a harassing environment do not necessarily mean they welcomed the behavior.
Objective Hostility and Unwelcomeness
Even if harassment was subjectively abusive, it must also be objectively hostile or abusive - meaning a reasonable person in the victim's position would find it sufficiently severe or pervasive to alter their work conditions and create an abusive environment. Here too unwelcomeness can be relevant, even if not dispositive.
The guidance notes some courts consider whether the victim communicated that the conduct was unwelcome in assessing objective hostility. For example, a request for a date or mildly flirtatious banter might not be inherently hostile. But if it continues after the recipient clearly objects, that can create an objectively abusive situation. As the EEOC puts it:
"When analyzing whether conduct is objectively hostile, some courts have focused on whether the harasser had notice that the conduct was unwelcome—either because the complainant had communicated as much or the harasser otherwise had reason to know. Such notice may be relevant in determining whether it is objectively reasonable for a person in the complainant's position to have perceived the ongoing conduct as hostile."
That said, the guidance emphasizes that many severe forms of harassment - like sexual assault, racist epithets, or quid pro quo demands - are so plainly unwelcome and offensive that no special notice is needed. The same goes for persistent, facially abusive conduct. A victim is not required to confront their harasser and object before the behavior becomes actionable.
The EEOC also cautions against relying on simplistic "unwelcomeness" inquiries that put victims on trial and lose sight of the ultimate hostile work environment test. Evidence that a victim laughed at sexual jokes or went along with banter does not necessarily mean they invited harassment, especially when power dynamics are considered. Saying no to a supervisor can be fraught.
Does It Rise to the Level of a Hostile Work Environment?
Ultimately, while showing unwelcomeness can support a harassment claim in some circumstances, it must be analyzed in light of the entirety of the situation. Was the conduct so inherently offensive that any reasonable person would consider it abusive? Did the victim's words, actions or circumstances indicate they found it hostile? Would a reasonable person sharing the victim's traits and experiences find it hostile?
Employers looking to get ahead of liability will focus on proactively creating cultures of respect and accountability so severe or pervasive harassment does not take root, regardless of how artfully victims object.
Contact us today for help fostering an inclusive culture of belonging where employees can thrive and feel safe.
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