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September 25, 2025
The United States Court of Appeals for the Sixth Circuit recently made it more difficult to sue employers for third party harassment in Michigan, Ohio, Kentucky, and Tennessee. See Bivens v. Zep, Inc., 147 F.4th 635 (6th Cir. 2025). Specifically, the Sixth Circuit found that employees must provide proof of intentional conduct before employers will be liable for third party harassment, whereas other circuit courts and the U.S. Equal Employment Opportunity Commission (EEOC) have employed the lesser standard of negligence. The Sixth Circuit’s ruling creates a notable circuit court split on the issue of third party harassment, which employers should monitor as the case law develops on this issue.
Bivens was a sales representative for Zep, Inc., which manufactures and distributes cleaning products to retail and commercial businesses. When Bivens visited one of Zep’s clients, which was a motel, the motel manager locked the door behind them and asked if they could date. Feeling uncomfortable, Bivens asked to leave and the motel manager unlocked the door. Bivens reported the incident to her manager, who told Bivens that she did not have to interact with the client again. Around the same time, Zep was looking to cut costs and eliminated Bivens’s job. Bivens then sued Zep for hostile work environment, retaliation, and discrimination on the grounds that she was fired either because she complained about the client or because she is black.[1]
At issue was whether an employer could be held liable for a non-employee’s actions. To prove third party harassment, the Sixth Circuit held that Bivens must demonstrate that Zep “intended” for the harassment to occur, either by desiring the harassment or by being “substantially certain” that harassment would result from its own actions. This holding represents a significant departure from the conclusions reached by other circuit courts and the EEOC, which employ a negligence standard – namely, that an employer is liable for third party harassment only when the employer “knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”
The Sixth Circuit’s analysis focused on principles of agency law, which permit vicarious liability for employees who act within the scope of their employment because they are agents of the employer. The Sixth Circuit noted, however, that agency law principles do not extend to the actions of a third party, like a client, because the third party is not acting at the employer’s request or to further the employer’s business. Because there was “no legal bridge between the client’s intent and Zep’s responsibility,” the Sixth Circuit held that Zep could be held liable only for its own intentional actions. Therefore, the Sixth Circuit concluded that Bivens must show that Zep intentionally created or tolerated harassing working conditions, which can be demonstrated by providing evidence that Zep intended to cause the harassment or that Zep was “substantially certain” that harassment would result from its own actions.
In reaching this conclusion, the Sixth Circuit acknowledged that it was departing from the conclusions reached by other circuit courts (First, Second, Eighth, Ninth, Tenth, and Eleventh) and the EEOC, which employ a negligence standard. The Sixth Circuit reasoned that the other circuit courts’ decisions hinged upon the EEOC’s guidance and the EEOC’s guidance, in turn, was not binding because the EEOC’s authority is limited to procedural regulations and not substantive interpretations of the law. The Sixth Circuit thus concluded that it had an obligation to independently interpret the law. Ultimately, the Sixth Circuit found that Bivens was unable to establish her claims against Zep under the standard that it laid out.
EMPLOYER TAKEAWAYS
The Sixth Circuit’s ruling provides employers with greater protection against claims for third party harassment or discrimination. That being said, employers should continue to document employee complaints and swiftly respond to them. Under the Sixth Circuit’s interpretation of the law, a failure to respond to an employee’s complaint could result in a finding that the employer was “substantially certain” that harassment or discrimination would result from its actions.
In addition, employers should monitor the law on third party harassment given the circuit split on this issue. Employers operating in multiple jurisdictions could be subject to different standards depending upon the state in which the claim is filed. The safest approach for employers is to maintain strong anti-harassment and discrimination policies, provide comprehensive training to employees, and respond promptly and appropriately to all employee complaints.
This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice. Always consult an attorney with specific legal issues.
[1] The Sixth Circuit concluded that dismissal of Bivens’s race discrimination claim was proper because her evidence was weak. For example, 19 of the 23 employees selected for termination were white.
