In Bivens v. Zep, Inc., No. 24-2109 (6th Cir. Aug. 8, 2025), the Sixth Circuit split with the EEOC and most U.S. Courts of Appeals as to when an employer may be liable under Title VII for harassment by a non-agent (e.g., non-employees such as an employer’s customers or clients). The court rejected the prevalent negligence standard and instead held that a plaintiff must show that an employer “intended” for the harassment by the non-employee to occur.
In Bivens, the defendant hired the plaintiff as a sales representative but laid her off as part of a reduction in force. Around the time of her layoff, the plaintiff told her supervisor about a single incident in which a customer made unwanted romantic advances towards her during a sales visit. In response, the supervisor reassigned the customer to another sales team, and the plaintiff no longer had to interact with the customer.
Following her separation from the company, the plaintiff asserted claims against the defendant for hostile work environment harassment, retaliation, and discrimination in violation of Title VII and Michigan state law. The plaintiff argued in opposition to summary judgment that she provided sufficient evidence to establish liability on her Title VII harassment claim under the negligence standard applied in most jurisdictions, which only requires a plaintiff to show that the employer “kn[ew] or should have known of the [non-employee’s] conduct and fail[ed] to take immediate and appropriate action.” See 29 C.F.R. § 1604.11(e). The district court disagreed and granted summary judgment in favor of the employer. The plaintiff appealed.
The Sixth Circuit affirmed the district court’s grant of summary judgment, holding (among other things) that the plaintiff’s Title VII harassment claim failed because the plaintiff could not establish that the defendant “intended” for the alleged harassment to occur. Relying on agency principles, the court held that the negligence standard was inapplicable to non-employees. According to the court, negligence liability for the “intentional tort of a servant[] . . . is an outgrowth of the idea that . . . the master can exercise control over the physical activities of the servant.” And because the customer was not an agent, the employer could not control their actions, or therefore, be vicariously liable for the customer’s intentional acts. Instead, the court held that an employer is liable only if it “intentionally treated” the plaintiff worse because of her sex—i.e., the employer “desired” the customer to harass the plaintiff or was “substantially certain” that the customer’s harassment would occur from the employer’s actions, “either of which would amount to tortious intent” sufficient to establish liability under Title VII.
The Sixth Circuit acknowledged that its holding departed from the EEOC’s interpretation of Title VII and from most circuit courts. Nevertheless, the court rejected the EEOC’s negligence standard under 29 C.F.R. § 1604.11(e), reasoning that Congress authorized the EEOC to issue only “procedural regulations” and that the EEOC did not have authority to issue “substantive” regulations interpreting the statutory rights of parties. The court also noted that interpretive guidelines such as § 1604.11(e) have no controlling effect on courts and that it was required to respect the guideline only to the extent the court found it persuasive, which it did not.
The court further explained that other circuits following the EEOC’s guidelines seemingly did so without undertaking an independent evaluation of the statute—or if they did, they engaged in “judicial policymaking.” For instance, the Sixth Circuit took issue with a Tenth Circuit case holding that a negligence standard applied because harassment by a customer was analogous to harassment by a co-worker. The court explained, “[A]gency law does not treat ‘harassment by customers’ as ‘analogous’ to ‘harassment by co-workers,’” and “there is no legal mechanism for imputing a customer’s unlawful intent to a business he frequents.”
Applying the intent standard to the plaintiff’s case, the Sixth Circuit found that there was no evidence that the defendant “desired” or was “substantially certain” the alleged harassment would occur. Rather, the defendant was entirely absent from the “one-off event” until after the plaintiff called and reported the incident to her supervisor. Such lack of knowledge or involvement was insufficient to establish the requisite intent for plaintiff’s harassment claim under Title VII.
In sum, the Sixth Circuit’s decision in Bivens may be a welcome reprieve for employers, as it raises the bar for establishing liability for harassment under Title VII with respect to the conduct of non-employee actors. However, the negligence standard is still alive and well in most jurisdictions. The Bivens court also explicitly noted that “many of the circuit cases that nominally apply a negligence standard would likely have been resolved the same way under the intent standard we adopt,” indicating that the “intent” standard may not be as circumscribed as employers may otherwise hope. Regardless, employers should always take seriously any complaints about inappropriate conduct in the workplace (whether from supervisors, co-workers, non-employees, or anyone else) and take proactive steps to appropriately rectify any potential areas of concern.
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