In Bivens v. Zep, 6th Cir., No. 24-2109 (August 8, 2025) the U.S. Court of Appeals for the Sixth Circuit addressed the question of when an employer may be legally responsible for harassment of its employees by a nonemployee. The court said if the accused is not an “agent” of the employer, it comes down to intent. More specifically, the court held that an employer can be held liable for harassment by a nonagent only if the employer intended for the harassment to occur.

Some commentators have described Bivens as creating a new and strong defense to harassment claims any time the alleged harasser is a client or customer. Others have described the Sixth Circuit’s standard as making it nearly impossible for plaintiffs to hold employers to account when the bad actor is not on the payroll. Those interpretations are flawed for the reasons discussed below. Moreover, those interpretations risk lulling employers into a false sense of security when it comes to harassment by nonemployees, when the reality is anything but risk-free.

Case Background

The plaintiff in Bivens worked as an outside sales representative for the defendant, a manufacturer and distributor of cleaning products. She alleged that during what was supposed to be a sales visit to a motel client, the motel manager locked her in his office, stared at her and invited her on a date. After she declined the invitation and asked to leave, the encounter ended. The plaintiff reported the incident to her supervisor. The...

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