Employer intent—not negligence—now governs employer liability for client harassment in the US Sixth Circuit

In a stark deviation from the EEOC’s guidance and several other federal courts, the Sixth Circuit Court of Appeals recently held in Bivens v. Zep, Inc., No. 2:23-cv-11398 that an employer can only be held liable for a client/customer’s harassment of an employee if the employer intended for the harassment to occur.

Case background and procedural history

Plaintiff, Dorothy Bivens, was a sales representative for Zep, Inc. She alleged that while meeting with a client at a motel, the client locked the door, asked her if they could date and left. After reporting the incident to her supervisor, she was reassigned to another sales team and did not interact with the client again.

Around the same time, the company conducted a reduction-in-force in an effort to reduce headcount and cut costs. Bivens’s role was one of 23 roles that were eliminated. Following her termination, Bivens sued Zep for hostile work environment harassment, retaliation and discrimination under Title VII and Michigan law.

The district court granted summary judgment in November 2024 on all of Bivens’s claims, and on August 8, 2025, the Sixth Circuit affirmed.

Of particular importance here is the Sixth Circuit’s holding as to Bivens’s harassment claim. Looking at the language of Title VII, which defines “employer” as including “any agent of the company,” the Court reasoned that because clients or customers are not “agents” of a company, a company cannot be vicariously liable for the harassment of a client or customer. Thus, to hold an employer liable for hostile-work-environment harassment by a customer (or any other non-agent), the plaintiff must show that the employer intended for the harassment to occur. A plaintiff can do this by providing evidence that the employer either “desired to cause” the harassment or was “substantially certain” that it would “result from” its actions. Because there was no evidence that would allow a jury to conclude that Zep “desired” the interaction to occur or was “substantially certain” that it would occur in this “one-off event,” summary judgment was granted on Bivens's harassment claim.

Key takeaways for employers

The Sixth Circuit acknowledged that its holding in Bivens was a departure from the conclusion reached by most circuit courts who have addressed this issue and the EEOC. The First, Second, Eighth, Ninth, Tenth and Eleventh Circuits have applied some form of negligence theory of liability to the harassing acts of customers. The EEOC, likewise, deems negligence enough to hold an employer directly liable for workplace harassment committed by an employer. In rejecting the EEOC’s guidance, the Sixth Circuit also relied on the landmark decision in Loper Bright Enterprises v. Raimondo to note that their respect for the agency’s interpretation extends only so far as they find that interpretation “persuasive.” This decision is therefore also in line with the recent trend of courts giving less deference to EEOC guidance.

Thus, at least in the Sixth Circuit—which covers Kentucky, Michigan, Ohio and Tennessee—employers have a new defense against harassment by clients, customers and vendors against employees.

Still, the standard for harassment by co-workers remains the same and other jurisdictions still largely apply a negligence standard, even for harassment by customers, clients and vendors.

Finally, because the Sixth Circuit made a clear reference to the incident in Bivens being a “one-off event,” it remains unclear what exactly will cross the threshold of “intent” or “substantially certain.” Will repeated occurrences suffice? And if so, how many? Will rumor mills about a client’s prior acts suffice?