In contemporary sexual harassment litigation, this statement reflects a prevailing defense tactic. To establish a prima facie case of sexual harassment, plaintiffs must affirmatively demonstrate that they were subject to "unwelcome" sexual advances. Defense lawyers utilize this standard to discover and admit evidence of the victim's prior sexual behavior to show invitation to or provocation of the alleged misconduct. While such practices may seem repugnant, their purpose is readily discernible. By disclosing the intimate details of plaintiffs' sex lives, defense lawyers, with the sanction of sexual harassment law, force claimants to think twice about continuing their claims. Potential plaintiffs might reconsider the initiation of a law suit entirely. In addition, such disclosures may be prejudicial to the prosecuting claimant, causing the factfinder to render the judgment or verdict accordingly.
Aggressive defense tactics demonstrate a rational response to increasing pressure. The combination of greater publicity of sexual harassment issues and more generous legal remedies has led to an upsurge in the reporting and filing of employment discrimination claims. Moreover, the monetary relief recovered by sexual harassment complainants nearly doubled from 1992 to 1993, according to a study of cases handled by the EEOC Aside from the direct costs of litigation, sexual harassment cases may cost a large employer a substantial amount in terms of lost productivity and talent. Many firms must also employ "slush funds" to quietly settle suits that could otherwise result in messy public trials. In this environment of sharply increased stakes, the efforts of employers to intimidate plaintiffs and to indict their character merely reflect economic and legal realities.
Yet, notwithstanding the media attention devoted to issues of sexual harassment and the greater likelihood of substantial recovery, research indicates that sexual harassment remains a vastly under reported form of employment discrimination despite the fact that the incidence of sexual misconduct in the workplace is quite high."'
Paul N. Monnin,
Proving Welcomeness: The Admissibility of Evidence of Sexual History in Sexual Harassment Claims Under the 1994 Amendments to Federal Rule of Evidence 412,
48 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol48/iss4/9