Court Cites 6th Circuit’s Liability Standard for Nonemployee Harassment

On Oct. 31, the U.S. District Court for the Eastern District of Pennsylvania held that a teaching assistant had not provided evidence to hold her employer liable for the actions of a nonemployee student. The court did “agree with the teaching assistant as to the nature and pervasiveness of the male student’s improper” conduct; however, it found that the plaintiff did not show the employer was responsible for the student’s actions.

Courts generally hold that an employer can be liable for harassment by nonemployees when it “knew or should have known” and failed to act, which is the standard reflected in most circuit courts and U.S. Equal Employment Opportunity Commission guidance. However, the 6th Circuit recently broke with all other circuits addressing the issue in Bivens v. Zep Inc., holding that employer liability for nonemployee harassment requires intent — that the employer either desired the harassment or was substantially certain it would occur. While Pennsylvania falls in the 3rd Circuit, the district court noted that the 3rd Circuit has not specifically addressed this issue, and therefore it looked to the 6th Circuit’s analysis, concluding the teaching assistant must show the university was substantially certain its actions would cause harassment.