Can conduct be unwelcome if the employee participates?

Possibly. In some circumstances, a person who has engaged in sexual talk at work can still be a victim of sexual harassment. When determining whether sexual harassment has occurred, the question is whether or not the conduct is welcome. To avoid being perceived as welcoming sexual conduct, an employee who does not want to participate in workplace “sex talk” should firmly tell others that he or she does not want to participate. If the conduct continues or the employee feels uncomfortable confronting his or her coworkers, the employee should be strongly urged to report the behavior to management by following the complaint procedure set forth in the employer’s sexual harassment policy.

Supervisor's advances. Even if an employee consents to the sexual advances of a supervisor, the sexual conduct can still be unwelcome. Because a supervisor has authority over employment decisions, his or her harassing conduct is more likely to intimidate employees and interfere with their work performance. An employee may voluntarily participate in unwelcome sexual conduct because the employee fears losing his or her job if the sexual advances are rejected. The law looks at whether the employee acted in a way that would indicate the sexual advances were unwelcome.

Delayed complaint. While an immediate complaint strongly suggests that conduct is unwelcome, an employee’s delay in complaining does not necessarily indicate that conduct is welcome.