On August 8, 2025, the United States Court of Appeals for the Sixth Circuit held that Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., “imposes liability for non-employee harassment only where the employer intends for the harassment to occur.” Bivens v. Zep, Inc., No. 24-2109 (6th Cir. Aug. 8, 2025) (emphasis added). In so doing, it “depart[ed]” from EEOC guidelines and “most circuit courts to have addressed the issue,” which all would impose liability under a lesser standard.
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Plaintiff Dorothy Bivens, a former sales representative of the cleaning products company Zep, Inc., regularly traveled to Zep’s Detroit-area clients “to sell products and maintain relationships.” On one such visit, Bivens alleged that the client sexually harassed her. She notified her supervisor, and he “reassigned the client to another sales team.” “Around the same time,” Zep eliminated twenty-three roles, including Bivens’s.
Bivens sued Zep in the United States District Court for the Eastern District of Michigan, alleging “hostile work environment harassment, retaliation, and discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Elliott-Larsen Civil Rights Act, Mich. Comp. Laws § 37.2101 (1979).” Bivens argued that “she faced a hostile work environment because of the client’s sexual harassment . . . for which Zep should be liable.” The district court “granted Zep summary judgment on each of Bivens’s claims.”
On appeal, the Sixth Circuit assessed whether an employer is ever “liable—either directly or vicariously—for the harassment of an employee by a non-employee.” The Court held that “agency law principles” govern the vicarious liability question. Accordingly, employers may sometimes be liable for client harassment—but only if the client was acting as the employer’s agent. Here, “the client who harassed Bivens was not Zep’s agent.” He was a customer over whom Zep could exercise no control. Thus, Bivens could not hold Zep vicariously liable for the harassment.
As for direct liability, the Court held that Bivens “must show that Zep ‘intend[ed]’ for the relevant unlawful ‘consequence’—here, her harassment—to occur.” Because it found that no reasonable jury could conclude that Zep “desired” the harassment to occur or was “‘substantially certain’ that it would,” Bivens could not hold it directly liable for the client’s harassment.
“Other than the Seventh Circuit, every other circuit to reach the issue . . . the First, Second, Eighth, Ninth, Tenth, and Eleventh Circuits, has ‘applied’ some form of ‘a negligence theory of liability to the harassing acts of customers.’” Similarly, EEOC guidelines “deem[] negligence enough to hold an employer directly liable for workplace harassment committed by a non-employee.” While the Sixth Circuit concluded that “that many of the circuit cases that nominally apply a negligence standard would likely have been resolved the same way under the intent standard,” the intent standard for non-agent harassment claims in fact likely makes it easier for employers to defend against such claims.