Experts note that one of the key factors in a sexual harassment case is whether or not the conduct is welcome. The same act can be both legal and illegal, depending on the circumstances.
This has to be true because of co-worker relationships. If you're dating a co-worker in your office and you give him or her a kiss on your lunch break, you haven't broken the law. Of course, if you're not dating and your co-worker doesn't want that display of affection, doing so could spark a lawsuit.
It sounds like common sense on many levels, but it's actually a crucial distinction. Numerous people who have been accused of sexual harassment have defended themselves not by denied they did what they're accused of doing, but simply by saying they thought the actions were welcome and never meant any harm.
There isn't anything specific that a victim has to do to make it clear that the actions aren't welcome. Every case is different, and the court will simply look at all of the details and decide if it should have been reasonably clear.
Remember, many sexual harassment cases take place between supervisors and those who work under them. A victim may not know what to say or may be afraid to refuse a boss's advances for fear of being fired. That doesn't mean that the advances were welcomed.
As you can imagine, this means there is a lot of gray area in these cases, where two sides may disagree on exactly what took place or what intentions there were. Those who have been harassed must know their legal rights and how they can approach the situation.
Source: Politicus USA, "Is Sexual Harassment Really Just Telling a Joke She Doesn’t Like?," Sarah Jones, accessed March 17, 2017