Sixth Circuit Limits Liability for Non-Employee Conduct

In the case of Bivens v. Zep, Inc., No. 24-2109 (6th Cir. Aug. 8, 2025), the Sixth Circuit broke from guidance by the Equal Employment Opportunity Commission (EEOC), and that of most other circuit courts, in holding that Title VII of the Civil Rights Act of 1964 (Title VII) requires intentional conduct from an employer before it can be held liable for the harassment of a non-employee—for example, a client or customer.

In this case, the plaintiff, a sales representative, went to visit a client hotel manager. When she stepped into the motel manager’s office, the manager locked the door behind her. He then asked her if they could date. The plaintiff said no, explaining that she was married. Feeling uncomfortable, the plaintiff then asked to leave. The manager unlocked his office door and the plaintiff walked out. The plaintiff later described these events to her supervisor, who reassigned the client to another sales team, so the plaintiff would not need to interact with the client again. Shortly afterwards, the company terminated the plaintiff’s employment as part of larger reduction in force.

The plaintiff filed suit alleging, among other things, that the client’s actions subjected her to a hostile work environment. On appeal, the Sixth Circuit considered whether a company could be held liable for the actions of an individual that it did not employ. The court found that for a plaintiff to hold her employer liable for hostile-work-environment harassment by a customer (or any other non-agent), she must show that the company intended for the harassment to occur. A plaintiff can only do this by providing evidence that the company either (1) desired to cause the harassment or (2) was substantially certain that it would result from its actions. For example, an employer who instructs an employee to be “cordial” to a certain client and “keep him satisfied,” could be found to have either desired the resulting harassment of the employee or, at least, been substantially certain that it would occur.

This holding is significant as it departs from the conclusion reached by most circuit courts that have addressed the issue as well as established EEOC guidance. Specifically, the EEOC allows liability for non-employee harassment when the employer knows or should have known of the conduct and fails to take immediate and appropriate corrective action. Essentially, that the employer was negligent in allowing the harassment. This standard is similar to the one applied in Ohio. The holding raises the threshold for establishing liability under Title VII for harassment with respect to non-employees in the Sixth Circuit, providing greater protection for employers. However, it is not clear how this new heightened standard will apply with respect to Ohio state discrimination laws.