On February 19, 2026 the Penn State Dickinson Law Civil Rights Appellate Clinic filed an amicus brief on behalf of NWLC and National Employment Lawyers Association in the Third Circuit Court of Appeals in O’Neill v. Trustees of the University of Pennsylvania. In this case, Sophia O’Neill, a teaching assistant and lab manager at a university, alleged, among other things, that she was sexually harassed by a student and that the university failed to take appropriate action after she reported it. The district court ruled that the university was not liable for creating a sexually hostile work environment based on the student’s conduct. The court ruled that employers cannot be held liable for workplace harassment by a non-employee under Title VII of the Civil Rights Act of 1964 unless the employer was substantially certain its own actions would cause harassment.
The brief points out that the district court ignored United States Supreme Court guidance, the standard adopted by nine circuit courts of appeal, and Third Circuit precedent when it adopted a “substantial-certainty” standard for third-party harassment liability, which has been adopted only by the Sixth Circuit, rather than the widely applied negligence standard. The brief explains how holding employers to a negligence standard simply requires employers to act reasonably, whereas a substantial-certainty standard incentivizes employer ignorance and inaction, leaving employees without meaningful protection. The brief concludes that the negligence standard for third-party harassment is essential in preventing widespread harm in the workplace and fulfilling the remedial purpose of anti-discrimination law.