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65 UMKC L. Rev. 977 (1996-1997)
The Sexual Harassment Revolution: Employer Liability for Third Party Sexual Harassment

handle is hein.journals/umkc65 and id is 987 raw text is: THE SEXUAL HARASSMENT REVOLUTION:
Amy Mathews**
The advent of the sexual harassment revolution' began with the Supreme Court's
decision in Meritor Savings Bank v. Vinson.' The Court's ruling recognized sexual
harassment claims as a violation of Title VII's3 ban on sex discrimination in the
workplace.4 Third party or non-employee sexual harassment claims have now joined
the sexual harassment revolution. Third party sexual harassment has been a recognized
violation of Title VII by the Equal Employment Opportunity Council (EEOC) and a
limited number of courts since 1981.' Even so, very little has been written on the
subject of employer liability for this type of sexual harassment.6 Many potential third
party sexual harassment plaintiffs have not filed claims or have settled out of court,
creating a lack ofjudicial review on the subject.7
Many employers would recognize the conduct of a third party as sexual
harassment. However, few would know that an employer can be held liable for
damages if it knew or should have known that its employee was being sexually
harassed in the workplace by a third party. HRFocus, a human resource magazine,
published a quiz in its July 1996 issue to test people's knowledge of third-party
harassment.8 The following quiz9 is meant to test your knowledge of this new sexual
*. Men and women are both subjected to sexual harassment This comment happens to focus on
sexual harassment of women because the only reported cases of third party harassment deal with women.
The author, in no way, wishes to imply that men have not and will not be the subject of third party
harassment, because unfortunately they are and will be.
**. J.D. Candidate, 1997, University of Missouri-Kansas City School of Law; B.S. in Business
Administration, 1991 Kansas State University, Manhattan, Kansas. The author thanks Wanda Temm,
Professor of Law, for her insight, editing and encouragement. The author would also like to thank G.
David Porter, Attorney, Sonnenschein, Nath & Rosenthal for the topic idea and editing.
1. A federal judge in California believes that sexual harassment is to the 1990's what racial
discrimination was to the 1960's and 70's. Don Lee, System is Overloaded by Sexual Harassment
Complaints in the Workplace Have Skyrocketed, LOS ANGELES TIMES, June 14, 1995, at A-20.
2. 477 U.S. 57 (1986) (affirming the claim of a plaintiff who had been sexually harassed for
approximately two years by her supervisor).
3. Id at 73 (a claim of 'hostile environment' sex discrimination is actionable under Title VII.).
4. 42 U.S.C. § 2000e-2(aXl) (1994) (an unlawful employment practice for an employer.., to
discriminate against any individual with respect to his compensation, terms, conditions or privileges of
employment, because of such individual's race, color, religion, sex, or national origin).
5. See EEOC v. Sage Realty Corp., 507 F. Supp. 599 (S.D.N.Y. 1981).
6. See generally L.A. Winokur, Worplace: Harassment of Workers by 'Third Parties' Can Lead
Into Maze of Legal, Moral Issues, WALL ST. J., Oct. 26, 1992, at B I.
7. See id (A female reporter has never used the sexual harassment policy at her employment or
made a claim in court against her third party harassers for fear that she will be seen as weak by her fellow
reporters and that she will lose her job.). But see Lee, supra note 1, at A-20 (Because most cases are
settled or dismissed, a small percentage of complaints result in lawsuits, and an even smaller fraction wind
up going to trial - although that number is increasing.).
8. See Donald J. McNerney, New Legal Worry: Third-Party Sexual Harassment, HRFoCUs, July

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