Since the United States Supreme Court’s recent shift away from deference to agency interpretations, the U.S. Court of Appeals for the Sixth Circuit has wasted no time charting its own course. On August 8, 2025, it upended its evaluation of claims of harassment by customers, vendors, and other non-employees under Title VII. In Bivens v. Zep, Inc., the Sixth Circuit Court of Appeals rejected the negligence-based standard provided for under EEOC Guidelines and that most other federal circuits follow, and instead required proof that the employer intended the harassment to occur. This shift makes it more difficult for an employee to establish a claim against an employer for third-party harassment in Kentucky, Michigan, Ohio, and Tennessee.
Bivens Background and the Court’s Analysis
Dorothy Bivens worked as a sales representative for Zep, Inc., visiting customers in the Detroit area. A few months into the job, she met with a motel client whose manager locked the office door and asked her to date him. When she refused and asked to leave, the manager unlocked the door. Bivens reported the incident to her supervisor, who reassigned the account so she would not interact with the client again. Weeks later, Zep included her in a company-wide reduction in force. Bivens sued, claiming the client’s conduct created a hostile work environment under Title VII and Michigan law, and alleging retaliation and race discrimination.
In its decision, the Sixth Circuit found “no legal bridge between the client’s intent and Zep’s responsibility” because the customer was not an agent of the company. Without an agency relationship, the court concluded that the only path to liability was direct liability for Zep’s own actions—which required intent. Citing to Staub v. Proctor Hosp., the Sixth Circuit stated that intent exists when an employer “either ‘desire[d] to cause’ [the] harassment or was ‘substantially certain’ that it would ‘result from’ its actions.”
Applying that standard, the Sixth Circuit concluded that “[n]one of this would allow a jury to conclude that Zep ‘desired’ such an interaction to occur or was ‘substantially certain’ that it would,” where the incident happened only once and Zep reassigned the account immediately after learning of it. The Court rejected the EEOC’s guidelines as nonbinding and “unpersuasive,” and emphasized that the Supreme Court’s 2024 decision in Loper Bright required courts “to independently interpret the statute.”
What This Means Now for Employers
Within the confines of the Sixth Circuit, this decision raises the bar for plaintiffs and gives employers more protection from third-party harassment cases. For multi-state employers, it adds complexity because most other circuits still apply negligence-based liability. The Sixth Circuit’s reliance on Loper Bright to move away from EEOC interpretations signals a willingness to re-examine agency-driven standards more broadly—leaving open the question of what other long-standing guidance the Sixth Circuit might reject next. That uncertainty makes it even more important for employers to set policies that meet the most demanding standard, apply them consistently, and respond immediately and decisively to any report of customer or vendor misconduct.
In light of Bivens, we can review your harassment-prevention policies, train managers on handling third-party misconduct under differing standards, and ensure your complaint-handling process can withstand scrutiny in any jurisdiction. Reach out to us with your questions—we can help you prepare, respond, and stay ahead of the evolving law.
*Lauren M.Drabic has years of experience representing employers in all areas of employment and labor law. She regularly defends and advises employers against claims of harassment, discrimination, and retaliation in federal and state court and before administrative agencies. Stephen Zashin is Z&R’s Managing Partner and also has worked extensively representing clients in harassment, discrimination, and retaliation claims. For more information on matters involving harassment prevention, third-party misconduct, and compliance with evolving federal and state law, contact Lauren M. Drabic (lmd@zrlaw.com) or Stephen S. Zashin (ssz@zrlaw.com) by email or at 216.696.4441.