Federal Court Adopts Stricter Standard for Employer Liability in Third-Party Harassment Cases

Quick Hits

• In O’Neill v. University of Pennsylvania, the U.S. District Court for the Eastern District of Pennsylvania concluded the university was not liable for the harassment because it did not intend for the harassment to happen.
• The court found the research associate satisfied some of the criteria for a hostile work environment and sexual harassment claim, but failed to prove the university was liable.
• The court relied on a recent ruling in the Sixth Circuit, which held that an employer is not liable for a third party’s harassment of an employee unless it intended to cause or allow the harassment.

Background

In 2022, the female plaintiff began working as a research associate at the University of Pennsylvania’s robotics lab and as a teaching assistant for robotics classes. She alleged a male student harassed and physically intimidated her by blocking her path to her desk, hovering over her desk, demanding answers to questions in assignments, and waiting for her outside the robotics lab. She also claimed he sent her several inappropriate messages, including “I’m going too deep into depression. Please come home and stay with me if you can” and “Love you so much babe . . . come soon,” along with a heart emoji and a kissing face emoji. The plaintiff reported these messages to her supervisor on February 22, 2023.

The university promptly removed the student from the lab and established a safety plan for the plaintiff. This plan allowed the student to use the lab only when the plaintiff’s supervisor was present and prohibited the student from communicating with the plaintiff outside of an academic setting. However, the plaintiff wanted a guarantee that she would not interact with the student and that he would not access to the lab even when she was not working there, according to court documents.

The plaintiff ceased working there after February 22, 2023, but the university continued to provide her with pay and benefits. The university stated it would consider her to have abandoned her job if she did not return to work by March 22, 2023, or formally apply for a leave of absence. The plaintiff filed a complaint with the Philadelphia Commission on Human Relations on May 5, 2023.

She received a preliminary job offer from a technology company, but the company rescinded its offer after checking her references. She had listed the robotics program director on her resume. The program director said he only provided the technology company with information about her degree and claimed he did not know about her formal complaint until later. Subsequently, she amended her complaint to include a retaliation claim. She then sued the university for allowing a sex-based hostile work environment, for constructive discharge, and for retaliation under Title VII of the Civil Rights Act of 1964 and the Philadelphia Fair Practices Ordinance.

The Court’s Ruling

Title VII prohibits workplace harassment based on sex, race, color, religion, and national origin. To establish a harassment claim under Title VII, an employee must demonstrate that the conduct was sufficiently severe or pervasive to create a hostile work environment or that enduring the offensive behavior became a condition of continued employment.

To hold an employer liable for a hostile work environment based on sexual harassment, the court identified the following five criteria that must be met:

• The employee suffered intentional discrimination because of their sex.
• The discrimination was severe or pervasive.
• The discrimination had a detrimental effect on the employee.
• The discrimination would detrimentally affect a reasonable person in similar circumstances.
• There is a legal basis for employer liability.

The university filed a motion for summary judgment, arguing that the student’s behavior was not severe or pervasive. However, the court disagreed, stating, “Physically threatening behavior— especially when coupled with unwanted comments or attention—might tip the scale towards finding harassment to be severe or pervasive when considering the totality of the circumstances.”

The university argued it was not liable for creating a hostile work environment based on a recent ruling from the U.S. Court of Appeals for the Sixth Circuit in Bivens v. Zep Inc., which held that an employer is liable for a third party’s harassment of an employee only when it intends for such harassment to occur. As a result, the district court granted summary judgment in favor of the university, concluding it could not be held liable for harassment by non-employees unless it either “desired” the harassment or was “substantially certain” it would occur.

In contrast, the First, Second, Fourth, Eighth, Ninth, Tenth, and Eleventh Circuit Courts have held employers liable for a third party’s harassment of an employee if the employer “knew or should have known” about the conduct and did not take action to address it. Similarly, guidance from the U.S. Equal Employment Opportunity Commission supports employer liability when they “knew or should have known” about harassment and failed to take corrective action.

Regarding the retaliation claim, the district court found the research associate did not show that the program director knew about her complaint when he spoke to the technology company. Thus, the court dismissed the retaliation claim along with the harassment and hostile work environment claims.

Next Steps

Employers should be aware of the current circuit split regarding employer liability for harassment by nonemployees, such as customers, clients, volunteers, or students. The Sixth Circuit has established a higher standard for proving employer liability by focusing on intent. In contrast, the “knew or should have known” standard used in other circuit courts may be easier for plaintiffs to meet.

It is important for employers to respond promptly and effectively to harassment complaints and to ensure that employees do not face retaliation for making such complaints. Employers should consider reviewing their written policies and training programs to ensure they clearly address harassment and outline an effective complaint procedure. Staying informed about legal developments in this area is important for understanding potential implications, depending on the state and circuit.

Ogletree Deakins will continue to monitor developments and will provide updates on the Employment Law and Pennsylvania blogs as new information becomes available.

Amanda T. Quan is a shareholder in Ogletree Deakins’ Cleveland office.

Lauren C. Tompkins-Payton is a shareholder in Ogletree Deakins’ Cleveland office.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

Follow and Subscribe

LinkedIn | Instagram | Webinars | Podcasts