For years, both the Equal Employment Opportunity Commission and multiple federal appellate circuits have agreed on the legal standard for proving liability for sexual or other harassment by a third party such as a vendor or customer. An employer is liable only if it knew or should have known of the harassment and failed to take appropriate action. Last week, the Sixth Circuit Court of Appeals adopted a novel view of liability for third-party harassment, limiting it to situations where the plaintiff can prove that the employer intended the harassment to occur.
In Bivens v. Zep Inc., the plaintiff was a sales representative who alleged that a customer locked her in a room during a sales call and made multiple sexual advances. She reported the harassment to her supervisor, who immediately reassigned the client to another salesperson. When the plaintiff was laid off one month later, she sued, alleging sex and race discrimination as well as retaliation for complaining about the harassment. The district court dismissed the sexual harassment claims on the grounds that the employer took prompt remedial action once it learned of the plaintiff’s allegations.
The Sixth Circuit affirmed this dismissal, but on different grounds. Rejecting the accepted legal standard for third-party harassment claims, the panel said that an employer can only be held liable under Title VII if it intended for the third party harassment to occur. This requirement may be demonstrated through direct evidence of such intent, or substantial certainty that the harassment would occur. The company’s negligence in responding to complaints of harassment by third parties is not sufficient to hold an employer liable for such conduct.
This novel reading of Title VII does not appear to be based on precedent or clear statutory language. The plaintiff’s counsel indicated their intent to seek a review of this decision by the full Sixth Circuit. If this new reading of Title VII prevails, plaintiffs would have an extremely difficult task in holding employers liable when the workplace harassment is committed by someone other than a manager or coworker.
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