UPenn Win Charts New Test for Third-Party Harassment of Workers

The University of Pennsylvania won summary judgment in a female teaching assistant’s suit over sexual harassment by a male student, in part due to constraints on an employer’s liability for for third-party conduct.

While plaintiff Sophia O’Neill had evidence the student harassed her based on sex, she failed to show the university intended it or was substantially certain would occur, Judge Mark A. Kearney of the US District Court for the Eastern District of Pennsylvania said in his Oct. 31 opinion.

The ruling predicted how the US Court of Appeals for the Third Circuit might decide an open question for that court, embracing the recently declared view of the Sixth Circuit.

The Cincinnati-based Sixth Circuit broke ranks with several other circuits in rejecting a test under which employers can be liable for sexual harassment of an employee by a nonemployee if they knew or should’ve known about the abuse.

“We have no binding precedent within our Circuit guiding our analysis. But we are persuaded by” the Sixth Circuit’s opinion in Bivens v. Zep. Inc., Judge Kearney said.

Bivens “fulsomely addressed this issue” and instructed that federal judges “should not simply parrot an agency interpretation” in “a post-Loper Bright world,” Kearney said, referring also to the US Supreme Court’s landmark ruling that eschewed the longstanding Chevron doctrine on agency deference.

Unlike the Third Circuit, the First, Second, Fourth, Eighth, Ninth, Tenth, and Eleventh circuit have addressed whether and when employers can be legally responsible for harassment of an employee by a nonemployee and all adopted a “knew or should have known” standard, the judge said.

Some did so based on nonbinding Equal Employment Opportunity Commission guidance that Bivens found the EEOC likely lacked the authority to issue, he said.

The proper test, based on the agency-law principles that Congress implemented through Title VII of the 1964 Civil Rights Act, is to require evidence an employer intended for third-party harassment to occur or at least was substantially sure it would, Kearney said.

There’s no agency relationship between an employer and a nonemployee, so there’s no basis to hold employers accountable under the negligence-based standard that governs coworker harassment, he said.

While O’Neill showed the student harassed her based on sex by sending her romantic text messages, hovering over her, and blocking her path, she failed to address whether UPenn intended the abuse to occur, the court said.

She also fell short of showing the university was substantially certain the harassment would occur, the court said.

There isn’t “much difference” between the intent standard and the knew-or-should-have-known test, apart from converting should’ve known to substantially certain, Kearney said. O’Neill failed the knew-or-should-have-known test anyway, because UPenn acted promptly and effectively once she reported the student’s actions, he said.

O’Neill’s retaliation claim against the university also failed, the judge said. She didn’t show the program director whose letter of reference allegedly derailed her job with another employer had known about her bias complaint.

Uebler Law LLC represented O’Neill. Paul Hastings LLP represented the university.

The case is O’Neill v. Trs. of Univ. of Pa., 2025 BL 391208, E.D. Pa., No. 2:25-cv-01129, opinion filed 10/31/25.