In a break from the EEOC and other circuits, in Bivens v. Zep, Inc. (6th Cir. No. 24-2109, 08/08/2025) the Sixth Circuit held that an employee must prove intent—not merely negligence—when claiming employer liability for harassment by a customer. Bivens, a salesperson of cleaning products, sued under Title VII claiming a customer sexually harassed her, and claiming the employer was liable due to its negligence. The Sixth Circuit affirmed summary judgment for the employer. The EEOC and other circuits had adopted a negligence standard, but the Sixth Circuit now rejects that view, requiring proof of intent. The customer was not the employer’s agent, and there was no showing that the employer intended harassment to occur. The court also denied Bivens’ claims that her report of the incident or race played a role in her layoff during a reduction in force.
Sixth Circuit Breaks from Other Circuits on Liability for Sexual Harassment by Customer
