The U.S. Court of Appeals for the Sixth Circuit recently considered the legal standard that employees must meet to sue their employers for harassment by customers. Although most courts have applied a negligence standard, the Sixth Circuit imposed a higher intent-based standard. The case is Bivens v. Zep Inc., 6th Cir., No. 24-2109 (Aug. 8, 2025).
Zep Inc. is a manufacturer and distributor of cleaning products to businesses nationwide and abroad. Bivens worked as a territory sales representative in the Detroit area, which involved visiting area clients to sell products. When Bivens visited a Zep client, which was a motel, the hotel manager locked the door of his office after she entered it and asked to date her. Bivens advised the manager that she was married and asked to leave. The manager unlocked the door, and she left without incident.
Bivens reported the incident to her supervisor, who reassigned her to a different sales team, which allowed her to avoid future contact with the motel. Neither Bivens nor her supervisor mentioned the incident to anyone else. In the meantime, Zep was taking cost-cutting measures because of the pandemic. The company president identified various positions to eliminate, focusing on sales representatives serving smaller territories that generated less revenue. Ultimately, Zep eliminated 23 employee positions, including the one Bivens filled, as the territory she covered was expected to generate less than $100,000 in revenue.
Bivens then sued Zep under Title VII of the Civil Rights Act and Michigan state law, alleging hostile work environment harassment, retaliation, and discrimination. She claimed Zep terminated her due to her complaint about the motel client or because she was Black. The federal district court granted Zep’s motion for summary judgment on all claims, and Bivens appealed to the Sixth Circuit.
On appeal, the Sixth Circuit examined the standard for employer liability on a hostile work environment claim under Title VII. The court noted that employers can be directly liable as a result of their actions, or those taken by high-level employees within the company. Conversely, employers may be indirectly liable for the acts of individuals at a lower level of the company in some cases. An employer can be liable for sexual harassment only if the employer intentionally discriminates by taking adverse action against an individual based on sex or intends sex-based harassment to result from its actions.
Under the negligence standard that all other federal circuit courts utilize, employers may be liable for harassment of their employees by customers if they fail to exercise reasonable care to stop or prevent the harassment from occurring. Those courts based their standards on deference to the Equal Employment Opportunity Commission (EEOC) guidance or some measure of judicial policy. However, the Sixth Circuit applied a higher standard, holding that an employer is not liable for a customer’s harassment of an employee unless evidence shows that it wanted the harassment to occur or had knowledge it would happen.
The Sixth Circuit pointed out that clients or customers, unlike employees, are not agents of or under the control of the employer. Therefore, for Zep to be liable for hostile work environment harassment by a customer (or other non-agent), Bivens had to prove that Zep intended the harassment to occur. In other words, she needed evidence that Zep wanted her to be harassed or was substantially certain that harassment would occur. Since Bivens could not produce the required evidence, the Sixth Circuit upheld the dismissal of her claims on summary judgment.
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