On February 19, NELA, joined by the National Women’s Law Center, filed an amicus brief in the 3rd Circuit case O’Neill v. University of Pennsylvania. This important case addresses the proper standard to analyze employer responsibility for 3rd party harassment. In O’Neill, the Plaintiff was a junior academic employee who was required to interact with a student who repeatedly intimidated her and subjected her to unwanted romantic communications that caused her serious harm, eventually forcing her from her position.
The district court (in direct contradiction to the Supreme Court, 3rd circuit, and 9 other circuit precedents) adopted the new 6th Circuit intent-based standard from Bivens v. Zep, which held that plaintiffs must show intent on behalf of the employer in 3rd party harassment cases.
NELA’s brief examines the importance of holding employers to a negligence standard, the standard recognized by most circuit courts and the U.S. Supreme Court. The brief argues that employers are best positioned to address the harassment of their employees once on notice, as they have the ability to prevent and remedy the work environment where the harassment occurs. Courts have repeatedly found that the negligence standard incentivizes employers to create proactive policies to address these situations. As the brief argues, “Workplace harassment is pervasive, underreported, and associated with serious psychological and professional harm. Critically, that harm does not depend on whether the harasser is a coworker or a third party. Like coworker harassment, third-party harassment alters the conditions of employment for the countless employees required to interact with customers, patients, and students every day. A negligence standard for third-party harassment is therefore essential in preventing large-scale workplace harm and fulfilling the remedial purpose of anti-discrimination law.”
NELA is grateful to Amicus Advisory Council Co-Chair Michael L. Foreman and his Civil Rights Appellate Clinic for drafting this brief, with the editing support of Christine T. Elzer (Elzer Law Firm, PA) and the National Women’s Law Center.
