There is an interesting new case involving harassment in the workplace from the Sixth Circuit Court of Appeals. In August, the Appeals Court heard Bivens v. Zep, Inc., 147 F.4th 635, 643 (6th Cir. 2025), to address the question of whether an employer can be held liable for workplace harassment committed by a non-employee (such as a customer or vendor).

The Sixth Circuit’s ruling is particularly notable because it differs significantly from how most other federal appellate courts and the Equal Employment Opportunity Commission (EEOC) have approached these cases.

Let’s break down what happened, what the court decided, and what this means for employers across the country.

Background of the Case: Bivens v. Zep, Inc.

The plaintiff, Dorothy Bivens, began working as a sales representative for Zep, Inc. (“Zep”). A few months into her employment, Ms. Bivens made a sales visit to one of Zep’s clients, a motel. Ms. Bivens alleged that she was sexually harassed by the motel manager during the sales meeting in his office. Ms. Bivens reported the incident to her supervisor, who reassigned the motel to another individual on the sales team so that Ms. Bivens would not have to work with that client again. No other individual at Zep was made aware of the incident.

Shortly after the incident, Zep went through a company-wide reduction in force due to fluctuations in business caused by the COVID pandemic. Twenty-three employees were terminated in total, including Ms. Bivens. All decisions regarding who was terminated in the reduction of force were made by the president of Zep. However, Ms. Bivens was notified of her termination by her supervisor.

Ms. Bivens went on to file a suit in Michigan federal court wherein she claimed that Zep created a hostile work environment based on Zep’s client’s actions (the incident with the motel manager) and retaliation for reporting the incident involving Zep’s client. The District Court ruled in favor of Zep on all claims, and Ms. Bivens appealed the case to the Sixth Circuit Court of Appeals.

The Sixth Circuit’s Ruling: Intent Matters

After hearing the case, the Sixth Circuit Court of Appeals held that an employer is liable under Title VII of the Civil Rights Act for a non-employee’s harassment of an employee only where the employer intends for the harassment to occur.

The Court explained that employer liability for non-employee actions only occurs if the employer is directly liable for those actions, and the intent standard determines whether an employer is directly liable for the workplace harassment committed by a non-employee. Under the intent standard, for an employer to be liable for harassment by a non-employee, the employer must have desired to cause the harassment committed by the non-employee or was substantially certain that it would occur.

Using this standard, the Sixth Circuit Court of Appeals found that the facts of the alleged incident would not allow a conclusion that Zep desired such an interaction or was substantially certain it would. Therefore, there was no violation of Title VII of the Civil Rights Act.

Implications of the Sixth Circuit’s Decision

Employers in the Sixth Circuit

While the ruling in Bivens v. Zep, Inc. is a significant departure from the standard used by most other Circuit Courts of Appeal, as well as the EEOC, it only applies to the states within the Sixth Circuit Court of Appeals jurisdiction. Those states are Kentucky, Michigan, Ohio, and Tennessee. Employers in those states may find it easier to defend against claims of workplace harassment by third parties due to this heightened threshold for liability.

What about Employers Everywhere Else?

Most other jurisdictions, including the Ninth Circuit Court of Appeals, which has jurisdiction over Nevada, California, and other western states, use the negligence standard.

Under the negligence standard, employers are liable for harassment by non-employees if the employer knew or should have known about the harassment and the employer fails to take immediate and appropriate corrective action. Because the negligence standard only requires knowledge and not intent, employers need to be more proactive in addressing harassment by non-employees.

Best Practices for Preventing and Addressing Non-Employee Harassment

Because the negligence standard provides a lower threshold for employer liability, there are strict obligations for employers in Nevada when it comes to workplace harassment.

If an employee reports harassment or unwelcome behavior by a non-employee, the employer has the same obligation that it would have if an employee were the alleged harasser. The employer must follow its policy and take immediate action, including investigating the complaint, taking action to stop any harassment that may be occurring, and taking steps to prevent harassment from occurring again in the future.

Employers should also ensure that their employees, especially managers and supervisors, are well-trained on the company’s harassment obligation so that these situations are handled correctly and in accordance with policy.

Final Thoughts: Navigating Evolving Standards of Employer Liability

This case highlights how employer liability under Title VII can vary depending on jurisdiction and court interpretation. Employers need to stay informed and remain proactive in addressing any form of workplace harassment, regardless of the source.

If you’re an employer operating in multiple states, it’s critical to adopt a harassment policy that meets or exceeds the most protective standard. This not only ensures compliance but also fosters a safe and respectful workplace for all employees.

By: Cara Sheehan, Esq.

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