Sixth Circuit Rejects EEOC Standard in Harassment Case

Workplace harassment law has always had a “fun” habit of sounding simple until you try to apply it in real lifekind of like assembling
furniture with instructions written by a poet. But in Bivens v. Zep, Inc., the U.S. Court of Appeals for the Sixth Circuit took a
messy, often practical questionwhen is an employer liable for harassment committed by a customer or other third party?and
answered it in a way that sharply breaks from the EEOC’s long-standing approach and most other federal circuits.

Translation: If you operate in Kentucky, Michigan, Ohio, or Tennessee, the “customer harassed my employee” playbook just got a new chapter.
It’s not a free pass to ignore complaints (please don’t be that company), but it is a meaningful change to how courts may analyze
Title VII third-party harassment claims.

The Big Picture in One Sentence

The Sixth Circuit rejected the EEOC’s negligence-style standard (the “knew or should have known” rule) for non-employee harassment and held
that, under Title VII, an employer is directly liable only if it intended the harassment to happen (including being
“substantially certain” it would continue based on the employer’s choices).

Quick Case Recap: What Happened in Bivens v. Zep?

Dorothy Bivens worked as a territory sales representative for Zep, visiting client sites to sell and maintain relationships. During a visit
to a motel client, the motel manager reportedly locked the door behind her, asked if they could date, and made her uncomfortable enough that
she asked to leave. She reported the incident to her supervisor. Zep reassigned the account so she would not have to interact with that
client again. Later, Bivens was terminated during a reduction in force and sued, alleging (among other things) a hostile work environment
based on the customer’s conduct, plus retaliation and race discrimination.

The district court granted summary judgment to Zep. The Sixth Circuit affirmedbut its reasoning on the harassment claim is what set off the
legal fireworks.

The EEOC Standard (and the “Most Circuits” Standard) the Sixth Circuit Rejected

For decades, the EEOC has taken the position that an employer can be responsible for harassment by non-employees (like customers, clients,
patients, vendors, or contractors) if the employer knew or should have known about the harassment and failed to take
“immediate and appropriate corrective action.” That’s a negligence-flavored approach: liability can turn on what the employer reasonably
should have done once it had notice.

Many federal courts have used some version of that negligence framework for third-party harassment claims. Practically, it pushed employers
toward a familiar question: Did you respond promptly and effectively? If yes, good. If no, welcome to litigation, where everything
you wrote in Slack will be reenacted in court like a dramatic reading.

What the Sixth Circuit Did Instead: An “Intent” Standard

The Sixth Circuit said: hold on. Title VII is about intentional discrimination. And when the harasser is not your employee or agent, there’s
no automatic legal bridge to attribute the third party’s intent to the employer.

So the court drew a bright line: in a non-employee harassment scenario, the employer can be liable under Title VII only for its
own intentional conduct. Under the court’s framework, the employee must show the employer either:

• Desired the harassment to happen, or
• Was substantially certain the harassment would result from the employer’s actions (or inaction) and proceeded anyway.

In plain English, the court is asking whether the employer effectively chose to expose the employee to discriminatory working conditionsmore
than merely failing to handle the situation perfectly.

Why Agency Law Became the Star of the Show

When harassment comes from supervisors or coworkers, courts often analyze employer liability through agency principles: employers act through
employees, supervisors can create vicarious liability, and negligence concepts can come into play depending on the relationship and response.

But customers usually aren’t acting “on the employer’s behalf” or under the employer’s control. Zep was a supplier; it did not control the
motel manager. Without an agency relationship, the Sixth Circuit said you can’t just import the usual negligence-based framework for
imputing intent.

So Why Didn’t the EEOC’s View Carry the Day?

Two big reasons, according to the Sixth Circuit:

1. Authority limits. The court emphasized that the EEOC’s authority under Title VII is largely procedural (how claims are
   processed), not a blank check to issue binding substantive interpretations that control courts.
2. The post–Loper Bright world. The court leaned on the modern administrative-law climate that pushes courts to independently
   interpret statutes, treating agency guidance as persuasive at mostnot controlling.

This doesn’t mean EEOC guidance is “worthless.” It still matters a lot for compliance, investigations, and what the agency will pursue.
But the decision signals that in federal courtat least in the Sixth CircuitEEOC interpretations may be treated more like a well-argued
brief than a rulebook carved into stone tablets.

How “Intent” Could Be Proved (Without Mind-Reading Technology)

“Intent” sounds dramatic, like you need a villain monologue. You don’t. Courts often infer intent from circumstances, patterns, and choices.
Under this standard, the most realistic pathway is the “substantial certainty” concept:
the employer knows the harassment will keep happening if it continues its course, and it keeps the employee in that situation anyway.

Examples That Illustrate the Line

Example A: One-off incident + quick corrective action (lower risk under this standard).

A customer makes an inappropriate advance; the employee reports it; the employer immediately reassigns the account, bans the customer contact,
or changes routes so the employee no longer has exposure. That looks like what Zep didcutting off recurrence rather than “tolerating” it.

Example B: Repeat offender + “just deal with it” culture (higher riskeven under intent).

A VIP client repeatedly harasses women; management knows; employees complain; nothing changes because “we can’t upset the account.” If the
employer continues assigning employees into that environment with knowledge the harassment will persist, a plaintiff may argue the employer is
substantially certain the harassment will continueand is choosing that outcome as the cost of doing business.

Example C: The slow-motion train wreck (where negligence starts to look like intent).

An employer “investigates” for months, makes no operational changes, sends the employee back to the same client site repeatedly, and documents
the complaints in a way that reads like: “Yes, this is happening. No, we’re not changing anything.” At some point, the difference between
“didn’t handle it well” and “tolerated it” becomes a jury-friendly argument.

What This Means for Employers in the Sixth Circuit

If your business has customer-facing rolessales, hospitality, healthcare, retail, logistics, field servicethis decision is directly relevant.
But the smartest takeaway is not “we can relax.” The smartest takeaway is:
tighten response systems so your conduct never looks like tolerance.

Practical Steps That Still Matter (A Lot)

• Build a “third-party harassment” lane into your policy. Many handbooks focus on coworker and supervisor harassment. Add
  customers, vendors, patients, contractors, and visitorsexplicitly.
• Give employees “stop-work authority.” If someone is being harassed in the field, they should be allowed to exit the
  situation safely, report it, and not be punished for leaving.
• Offer options that reduce exposure. Reassign the account, adjust schedules, send a partner, change routes, restrict site
  access, or require meetings to occur in safer formats/locations.
• Use contract leverage. Where possible, bake conduct expectations and removal clauses into vendor/customer agreements. “We
  reserve the right to bar individuals who violate our code of conduct” is not just politeit’s operational leverage.
• Document like a professional, not like a poet. The goal is to show: prompt report intake, rapid assessment, practical
  corrective steps, follow-up, and outcomes. Avoid notes that sound like “we know it’s bad but the client pays well.”

Multi-State Employers: Don’t Let One Circuit Set Your Whole Culture

Even if the Sixth Circuit’s “intent” approach narrows Title VII exposure in that region, many other jurisdictions still apply negligence-based
frameworks for customer harassment. Also, state laws, agency enforcement positions, and reputational risk don’t vanish at the courthouse door.
A national best-practices standard is still the safer long-term move.

What This Means for Employees (and Plaintiffs’ Lawyers)

This decision may make certain third-party harassment claims harder to win under federal Title VII in the Sixth Circuitespecially where an
employer took quick, practical steps to stop recurrence. But it doesn’t eliminate all options. In real litigation, claims often come in
bundles: hostile work environment theories, retaliation, and state-law variants (depending on the state).

Also, the “intent” test doesn’t require a smoking gun. A pattern of repeated complaints + repeated exposure + business-driven refusal to
intervene can be argued as substantial certainty. In other words, if an employer keeps feeding employees into a known hostile environment,
plaintiffs will try to frame it as intentional tolerance.

Will This Go Further? Possibly.

The Sixth Circuit openly acknowledged it was departing from the EEOC’s approach and from most other circuits’ handling of customer-harassment
liability. That kind of circuit divergence can lead to rehearing efforts or petitions asking the Supreme Court to step inespecially when the
issue impacts large segments of the workforce.

Until then, expect more briefs arguing about the weight of agency guidance, the role of agency law in Title VII liability, and how “intent”
should be inferred in customer-facing environments. In other words: more legal writing. And more legal writing about legal writing.

FAQ: The Questions Everyone Asks 30 Seconds After Hearing About This Case

Does this mean employers can ignore customer harassment complaints in the Sixth Circuit?

No. Even under an intent-focused approach, ignoring repeated complaints can start to look like tolerating discriminatory conditions.
Plus, there are business, safety, retention, and enforcement risks that don’t care about the fine print.

What’s the safest operational approach right now?

Treat third-party harassment complaints with the same urgency you’d apply to coworker harassment: take the report seriously, intervene
quickly, reduce exposure, and follow up to confirm the behavior stopped.

Does the decision change the “severe or pervasive” requirement?

Not really. “Severe or pervasive” is still part of hostile work environment analysis. The notable shift here is the lens for
employer liability when the harasser is not an employee or agent.

Conclusion: The New Rule Is About Your Choices

“Sixth Circuit Rejects EEOC Standard in Harassment Case” isn’t just a headlineit’s a reminder that courts may increasingly
scrutinize what employers chose to do when third-party harassment appears. The Sixth Circuit’s framework narrows Title VII liability
for non-employee harassment to cases where the employer intended the harassment or was substantially certain it would continue because of the
employer’s decisions.

For employers, the win isn’t “less liability.” The win is “clearer incentives”: build strong reporting channels, act fast, remove exposure,
and document corrective action. If you do that, you not only reduce legal riskyou also create a workplace where employees don’t feel like
their safety is being traded for a purchase order.

Real-World Experiences: What This Ruling Feels Like at Work

Court opinions can read like a math prooflogical, clean, and emotionally allergic. Real workplaces are the opposite: messy, human, and full
of competing pressures. Below are common experiences organizations run into around third-party harassmentshared here as generalized patterns
and composite scenarios (no private facts, no identifying details), but very real in how they play out.

1) “The Customer Is Always Right” (Until They Aren’t)

In customer-facing industries, teams sometimes absorb the unspoken rule that the client relationship outranks everything. You see it when an
employee reports crude comments or unwanted advances and the first response is, “Let’s not overreactthis account is important.” The practical
problem is that delay often becomes the story. Even if leadership eventually acts, months of continued assignments can make it look
like the employer knowingly allowed the behavior to continue.

Under the Sixth Circuit’s “intent/substantial certainty” lens, the risk isn’t just that the company reacted imperfectlyit’s that the company
appears to have accepted the likelihood of continued harassment as the cost of doing business. The operational fix many HR teams adopt is
deceptively simple: define non-negotiables. “We will not assign employees into known harassment risk” is a policy line that pays dividends
in retention and in litigation posture.

2) The Quiet Power of “Stop-Work Authority”

One of the most effective real-world tools is giving employees explicit permission to leave a situation that becomes unsafe or harassing.
Field service, sales, home health, delivery, hospitalitythese roles can involve being physically alone with customers or clients. Employees
often hesitate to exit because they fear discipline, lost commission, or being labeled “difficult.”

When a company clearly says, “If you are harassed, you can end the interaction and we will support you,” employees report sooner and
management has a faster path to intervention. It also changes the legal narrative: the employer isn’t tolerating the risk; it’s actively
reducing exposure. In practice, the best versions of this policy come with training and a simple script (“I’m ending this visit now; we’ll
reschedule through my manager”) so employees aren’t forced to improvise under stress.

3) The “We Reassigned the Account” MomentAnd the Follow-Up That Matters

In many workplaces, the first corrective action is reassignment: move the employee off the account or rotate who interacts with the customer.
That can be smartespecially when it immediately stops exposure. But reassignment alone sometimes creates a second issue: the organization
quietly passes the risk to someone else. Employees notice. If the harasser continues with a new target, the company can look like it’s
managing optics rather than safety.

The strongest responses pair reassignment with a boundary-setting step: a warning to the customer, a ban on specific individuals, a requirement
that meetings occur in public areas or with a second employee present, or ultimately terminating the relationship if behavior persists.
That combinationremove exposure + fix the rootis often what keeps the situation from becoming a pattern of “substantial certainty.”

4) Documentation: The Difference Between “We Acted” and “We Hoped”

People hear “document it” and think it means writing a novel. In reality, the most useful documentation is short and concrete: when the report
came in, what interim safety steps were taken, who was contacted, what the customer was told, how the schedule/account changed, and what
follow-up confirmed the behavior stopped. It’s the difference between “we took immediate and appropriate corrective action” and “we meant to,
but then the quarter got busy.”

A surprising lesson from many investigations is how quickly a single poorly worded note can undermine months of good work. If a manager writes,
“Client is a creep but we need the revenue,” you’ve just created the kind of exhibit that makes juries lean forward. The best organizations
coach leaders to write like professionals: factual, respectful, and focused on actions and outcomes.

Bottom line: whether the legal standard is negligence, intent, or something in between, the workplace reality is consistentemployees want to
know the company will protect them even when the person causing harm signs the checks. Build systems that prove that promise, and the law
usually becomes easier to live with.