Employers are not only responsible for the conduct of their employees in the workplace; there also exists an obligation to protect employees from the conduct of third parties with whom an employer chooses to work.  A circuit split has developed regarding the applicable standard of proof required to establish employer liability for employee claims of harassment for conduct of non-employee third parties, such as, clients, customers, and students.

In Bivens v. Zep, the Sixth Circuit established a stricter standard of proof for employees bringing such claims against their employers. In its decision, the court noted the elements of a hostile work environment claim:

(1) Plaintiff “suffered intentional discrimination because of [her] sex;”

(2) “the discrimination was severe or pervasive;”

(3) “the discrimination detrimentally affected” her;

(4) “the discrimination would detrimentally affect a reasonable person in like circumstances;” and

(5) there is a basis for “employer liability.”

In determining the basis of employer liability for harassment of an employee by a third-party, the court held the employer must have intended to cause or allow the harassment – meaning the employer “desired an unlawful consequence from the action or was ‘substantially certain’ the action would result in harassment.”

This represented a departure from the majority of Circuits, including  the First, Second, Fourth, Eighth, Ninth, Tenth, and Eleventh, which have adopted a reasonableness standard that requires employees need only show that the employer knew or should have known of the harassment to establish employer liability for third party claims.

Fast forward to O’Neill v. University of Pennsylvania, a sexual harassment case in which Sophia O’Neill (“O’Neill”), a teaching assistant at the University was allegedly subjected to severe and pervasive sexual harassment by a student in her lab.   She brought claims of sexual harassment against the University. The district court noted the reasonableness standard followed by a majority of Circuits. However, the court found the Sixth Circuit holding in Bivens persuasive and adopted the stricter “intent” standard, holding O’Neill must show the University intended or was “substantially certain” the conduct would result in harassment. The court found O’Neill had not done so and dismissed her claims on summary judgment.

O’Neill appealed to the Third Circuit which has not yet issued an opinion. In an amicus brief, the EEOC has signaled support for the negligence standard adopted by the majority of circuits and reflected in current guidance from the Supreme Court. It remains to be seen whether the higher standard outlined in Bivens will gain additional Circuit support.

For now, Minnesota employers should continue to promptly address harassment claims and ensure complainants are not subject to retaliation from either their employees or third parties. If you or your organization need guidance on best practices or assistance effectively addressing harassment complaints, contact Wiley Reber Law for legal advice that works.