The Sixth Circuit’s recent decision in Bivens v. Zep, Inc. set forth a significant departure from circuit precedent regarding employer liability for third-party harassment and signaled a potential opening for other courts to challenge the authority of the U.S. Equal Employment Opportunity Commission’s (EEOC) guidance in this area. On August 8, 2025, the Sixth Circuit in Bivens held that to be liable for third-party harassment under Title VII of the Civil Rights Act of 1964, an employer must intend for a client or customer to harass an employee. This holding creates a split within the federal courts of appeals, with other circuits following the EEOC’s guidance which provides for liability based on an employer’s negligence, not its intent.
In Bivens, a former employee of Zep, Inc. sued her former employer under Title VII of the Civil Rights Act of 1964 and Michigan state law. The former employee claimed that while employed by Zep, one of its clients locked her in his office and made forward comments that the two should date. The Sixth Circuit, in affirming the trial court’s decision to grant the employer’s motion for summary judgment, concluded there was no evidence that Zep intended for the client to harass the employee, or that Zep was substantially certain that the employee would be harassed if she met with the client.
The Sixth Circuit’s holding in Bivens breaks from existing EEOC guidance and the law in six sister circuits. The current negligence-based approach adopted...
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