With its August 8, 2025, opinion in Bivens v. Zep, Inc., the U.S. Court of Appeals for the Sixth Circuit rejected the EEOC’s guidelines (and split with several other circuits) to hold that the standard for holding an employer directly liable for the acts of a non-employee is the higher standard of intent, not negligence.
Question Before the Sixth Circuit: Under Title VII, an employer can either be directly liability for its own actions or vicariously liable for the actions of its agents. The question before the Sixth Circuit in Bivens v. Zep, Inc. was: when, if ever, is an employer liable for acts of a non-employee?
EEOC Guidance:
The EEOC advises that an employer can be liable for non-employee acts of sexual harassment in the workplace when the employer, its agents, or its supervisory employees knew or should have known of the harassment and fails to take immediate and appropriate corrective action. 29 C.F.R. § 1604.11(e). The First, Second, Eighth, Ninth, Tenth, and Eleventh Circuits have adopted this EEOC Guidance and applied the negligence standard.
Sixth Circuit Rejects Negligence Standard, Requires Intent by Employer for Acts of Non-Employees.
In Bivens v. Zep, Inc., the Sixth Circuit rejected the EEOC’s guidance and the approach of other circuits. Instead, the court reasoned that negligence cannot form the basis of employer liability for acts of a non-employee. Analyzing agency principles, the Sixth Circuit found that negligence is extended as a basis of liability...
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