{"id":9427,"date":"2026-01-09T14:50:19","date_gmt":"2026-01-09T14:50:19","guid":{"rendered":"https:\/\/usatrustedlawyers.com\/blog\/sixth-circuit-departs-from-circuit-weight-of-authority-and-limits-title-vii-liability-for-non-employee-harassment\/"},"modified":"2026-01-09T14:50:19","modified_gmt":"2026-01-09T14:50:19","slug":"sixth-circuit-departs-from-circuit-weight-of-authority-and-limits-title-vii-liability-for-non-employee-harassment","status":"publish","type":"post","link":"https:\/\/usatrustedlawyers.com\/blog\/sixth-circuit-departs-from-circuit-weight-of-authority-and-limits-title-vii-liability-for-non-employee-harassment\/","title":{"rendered":"Sixth Circuit Departs from Circuit Weight of Authority and Limits Title VII Liability for Non-Employee Harassment"},"content":{"rendered":"\n
\n
\n

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. \u00a7 2000e et seq., \u201cimposes liability for non-employee harassment only<\/em> where the employer intends<\/em> for the harassment to occur.\u201d Bivens<\/em> v. Zep, Inc.<\/em>, No. 24-2109 (6th Cir. Aug. 8, 2025) (emphasis added). In so doing, it \u201cdepart[ed]\u201d from EEOC guidelines and \u201cmost circuit courts to have addressed the issue,\u201d which all would impose liability under a lesser standard.<\/p>\n

***<\/p>\n

Plaintiff Dorothy Bivens, a former sales representative of the cleaning products company Zep, Inc., regularly traveled to Zep\u2019s Detroit-area clients \u201cto sell products and maintain relationships.\u201d On one such visit, Bivens alleged that the client sexually harassed her. She notified her supervisor, and he \u201creassigned the client to another sales team.\u201d \u201cAround the same time,\u201d Zep eliminated twenty-three roles, including Bivens\u2019s.<\/p>\n

Bivens sued Zep in the United States District Court for the Eastern District of Michigan, alleging \u201chostile work environment harassment, retaliation, and discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. \u00a7 2000e et seq., and the Elliott-Larsen Civil Rights Act, Mich. Comp. Laws \u00a7 37.2101 (1979).\u201d Bivens argued that \u201cshe faced a hostile work environment because of the client\u2019s sexual harassment . . . for which Zep should be liable.\u201d The district court \u201cgranted Zep summary judgment on each of Bivens\u2019s claims.\u201d<\/p>\n

On appeal, the Sixth Circuit assessed whether an employer is ever \u201cliable\u2014either directly or vicariously\u2014for the harassment of an employee by a non-employee.\u201d The Court held that \u201cagency law principles\u201d govern the vicarious liability question. Accordingly, employers may sometimes be liable for client harassment\u2014but only if the client was acting as the employer\u2019s agent. Here, \u201cthe client who harassed Bivens was not Zep\u2019s agent.\u201d He was a customer over whom Zep could exercise no control. Thus, Bivens could not hold Zep vicariously liable for the harassment.<\/p>\n

As for direct liability, the Court held that Bivens \u201cmust show that Zep \u2018intend[ed]\u2019 for the relevant unlawful \u2018consequence\u2019\u2014here, her harassment\u2014to occur.\u201d Because it found that no reasonable jury could conclude that Zep \u201cdesired\u201d the harassment to occur or was \u201c\u2018substantially certain\u2019 that it would,\u201d Bivens could not hold it directly liable for the client\u2019s harassment.<\/p>\n

\u201cOther than the Seventh Circuit, every other circuit to reach the issue . . . the First, Second, Eighth, Ninth, Tenth, and Eleventh Circuits, has \u2018applied\u2019 some form of \u2018a negligence theory of liability to the harassing acts of customers.\u2019\u201d Similarly, EEOC guidelines \u201cdeem[] negligence enough to hold an employer directly liable for workplace harassment committed by a non-employee.\u201d While the Sixth Circuit concluded that \u201cthat many of the circuit cases that nominally apply a negligence standard would likely have been resolved the same way under the intent standard,\u201d the intent standard for non-agent harassment claims in fact likely makes it easier for employers to defend against such claims.<\/p>\n<\/p><\/div>\n<\/p><\/div>\n","protected":false},"excerpt":{"rendered":"

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. \u00a7 […]<\/p>\n","protected":false},"author":1,"featured_media":9428,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[2475,610,2360,1532,4577,5816,7266,2700,913,914,7265],"class_list":["post-9427","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-lawyers","tag-authority","tag-circuit","tag-departs","tag-harassment","tag-liability","tag-limits","tag-nonemployee","tag-sixth","tag-title","tag-vii","tag-weight"],"_links":{"self":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/9427","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/comments?post=9427"}],"version-history":[{"count":0,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/9427\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media\/9428"}],"wp:attachment":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media?parent=9427"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/categories?post=9427"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/tags?post=9427"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}