On August 8, 2025, in Bivens v. Zep, Inc., the United States Court of Appeals for the Sixth Circuit held that employer liability for nonemployee harassment requires proof of the employer’s intent, a departure from the previous negligence standard historically relied upon by other federal appellate courts in accordance with prior EEOC guidance.
Background
Dorothy Bivens, a Black sales representative for Zep (a cleaning products manufacturer), was terminated during a company-wide reduction in force. Prior to termination, Bivens experienced an incident where a client of Zep, while she was at the client’s workplace, locked her in his office and asked to date her. She reported this to her supervisor, who reassigned the client to another sales team. Later, Bivens was terminated as part of a reduction in force. Following her termination, Bivens sued Zep for hostile work environment, harassment, retaliation, and discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII) and Michigan state law. Bivens asserted that Zep’s client’s actions subjected her to a hostile work environment, and further, that she was fired either because she complained about the client’s advances or because she is Black. The Michigan district court granted summary judgment in favor of Zep on each of Bivens’ claims.
To establish a sex-based hostile work environment claim, Bivens needed to show that 1) she was a member of a protected group; 2) she experienced unwelcome harassment; 3) the harassment was based on her sex; 4) the harassment created a work environment that unreasonably interfered with her work performance; and 5) Zep was responsible.
The EEOC has historically interpreted Title VII to allow employer liability for workplace harassment committed by a nonemployee (such as a customer or client) when the employer “knows or should have known of the conduct and fails to take immediate and appropriate corrective action.” This is a negligence-based standard, meaning that an employer can be held liable if it was negligent in discovering or remedying the harassment, regardless of whether the employer intended for the harassment to occur. Other federal circuit courts (including the First, Second, Eighth, Ninth, Tenth, and Eleventh Circuits) have been persuaded by the EEOC’s guidance and have adopted a similar approach.
Enter the Sixth Circuit’s Decision
Bivens appealed her case to the Sixth Circuit Court of Appeals. Ultimately, the Sixth Circuit affirmed Zep’s summary judgment victory, rejected the negligence standard for employer liability for harassment by nonemployees, and recognized that it currently stands alone in its view on liability for actions of third parties, while signaling its belief that other courts will eventually agree with its interpretation. The Sixth Circuit found that:
“with no legal bridge between the client’s intent and Zep’s responsibility, Zep can be held liable only for its own intentional actions. Thus, for Bivens to hold her employer liable for hostile-work-environment harassment by a customer (or any other non-agent), she must show that Zep ‘intend[ed]’ for the relevant unlawful ‘consequence’ — here, her harassment — to occur.”
The court explained that Bivens could make that showing by providing evidence that Zep wanted to cause her harassment or was “substantially certain” that harassment would “result from” its actions.
Additionally, the Sixth Circuit cited Bostock v. Clayton County, 140 S. Ct. 1731, 1740 (2020), to underscore that Title VII claims, including those for sexual harassment creating a hostile work environment, require a showing of intentional discrimination. Bostock clarified that discrimination “because of sex” under Title VII involves intentional conduct where an employer treats an individual differently based on their sex.
The Sixth Circuit also looked closely at agency law principles, which allow for vicarious liability for the acts of employees (agents) and found that such principles do not apply to nonemployees like customers, who are not agents of the employer, and sexual harassment does not further the interest of the employer. Because of this, the Sixth Circuit found that the only path to employer liability is direct liability, which requires intentional conduct by the employer.
The Sixth Circuit found that a jury could not conclude that Zep desired the interaction Bivens experienced to occur, nor that Zep was substantially certain it would occur.
The Sixth Circuit’s Departure from Historical Standards
The Sixth Circuit acknowledged its departure from the conclusions reached by other circuit courts and from the EEOC’s guidance on Title VII. The court reasoned that the EEOC’s interpretive authority is limited to procedural regulations setting forth the steps for pursuing a claim under Title VII, and that its substantive interpretations are not binding on courts.
Importantly, the Sixth Circuit noted that even if the EEOC did have authority to interpret Title VII’s substantive provisions, the court would be obligated to independently interpret the statute pursuant to the U.S. Supreme Court’s recent decision in Loper Bright Enters. v. Raimando, 144 S. Ct. 2244, 2263 (2024). The Loper Bright decision overturned Chevron deference, ending mandatory judicial deference to federal agencies’ reasonable interpretations of ambiguous statutes and requiring courts to independently interpret such laws.
Likewise, the court stated that it does not “lose any sleep over standing nearly alone in this conclusion” in rejecting the First, Second, Eighth, Ninth, Tenth, and Eleventh Circuits’ similar negligence theories, indicating that its departure flows from an independent analysis of the EEOC’s guidance while implying those circuit courts may have simply deferred to the EEOC’s guidelines in the past when maintaining the negligence standard for claims against third parties.
The Bottom Line
The Sixth Circuit’s decision represents a departure from prior jurisprudence on employer liability for the acts of third parties and places a significant focus on agency law and whether the bad actor was an “agent” of the employer. While this decision is only binding within the Sixth Circuit, which has jurisdiction over federal appeals arising from Tennessee, Kentucky, Michigan, and Ohio, the court spoke directly to how other circuit courts should address these claims moving forward. Employers should continue to monitor the activities of third parties and act promptly when improper conduct is reported or known. Even under the new standard articulated by the Sixth Circuit, employers cannot simply stand by and knowingly allow improper conduct of third parties such as vendors and clients.
