“Intent, Not Negligence”: The Sixth Circuit Re-defines Employer Liability for Customer Harassment in Bivens v. Zep, Inc.

1. Introduction

In Dorothy Bivens v. Zep, Inc., the United States Court of Appeals for the Sixth Circuit issued a precedential decision that reshapes the liability landscape for workplace harassment that originates from non-employees. Although Ms. Bivens alleged a gamut of Title VII and Michigan civil-rights violations—hostile work environment, retaliation, and race discrimination—the panel (Judges Thapar, Nalbandian, and author Judge Readler) affirmed summary judgment for the employer on all counts. The doctrinal headline, however, is the court’s categorical rejection of a negligence standard for employer liability when the harasser is a customer or other non-agent. Instead, the Sixth Circuit holds that intentional corporate conduct—i.e., a “desire” or “substantial certainty” that harassment will occur—is required.

Because every other circuit (save portions of the Seventh) and the EEOC’s own guidelines impose negligence in this context, Bivens creates an immediate inter-circuit conflict and sets the stage for potential Supreme Court review. The decision also carries practical ramifications for compliance officers, HR professionals, and litigators who must now revisit anti-harassment protocols in the Sixth Circuit states (Kentucky, Michigan, Ohio, Tennessee).

2. Summary of the Judgment

The panel’s reasoning centers on agency principles: because a customer is not an “agent” of the employer, the usual vicarious or negligence-based frameworks (derived from Faragher/Ellerth) do not apply. Without an agency bridge, only direct, intentional conduct by the employer suffices for liability. The court meticulously contrasts its approach with other circuits, critiques the EEOC guideline (29 C.F.R. §1604.11(e)), and anchors its rule in common-law tort and statutory text.

3. Analysis

3.1 Precedents Cited and Their Influence

• Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) – Recognized hostile work environment under Title VII; provides basic prima-facie structure adopted by the panel.
• Burlington Industries v. Ellerth, 524 U.S. 742 (1998) & Faragher v. City of Boca Raton, 524 U.S. 775 (1998) – Established vicarious liability standards (strict liability for supervisor’s tangible acts; negligence for coworker acts). Sixth Circuit distinguishes these cases because they presuppose the harasser is an employee-agent.
• Staub v. Proctor Hospital, 562 U.S. 411 (2011) – Clarifies tort “intent” (desire or substantial certainty). Court invokes Staub to define intent threshold.
• Bostock v. Clayton County, 140 S. Ct. 1731 (2020) – Quoted for the proposition that Title VII addresses intentional disparate treatment.
• Dunn v. Washington County Hospital, 429 F.3d 689 (7th Cir. 2005) (Easterbrook, J.) – Only circuit case previously applying an intent standard. Sixth Circuit adopts Dunn’s framework.
• Multiple “negligence” customer-harassment cases (1st, 2d, 8th, 9th, 10th, 11th Circuits: Lockard, Summa, Crist, Folkerson, Watson, etc.) – Court explicitly rejects their reasoning as agency-law error and undue reliance on EEOC guidance.
• EEOC Guidelines, 29 C.F.R. §1604.11(e) – Provide negligence standard for non-employee harassment; Sixth Circuit deems them non-binding and unpersuasive under Skidmore.

3.2 Core Legal Reasoning

1. Statutory Text & Intent Requirement

   Title VII targets intentional discrimination. “Employer” is defined to include agents, but only to the extent agency principles apply. Because customers do not act “on behalf” of, or “subject to control” by, the employer, they are not agents. Without vicarious linkage, liability can only arise from the employer’s own intent.

2. Agency Law Filters

   The panel walks through Restatement (Second) of Agency §§ 1 & 219. A supervisor’s authority may “aid” harassment, triggering strict liability, while coworker harassment activates negligence principles due to residual control. Customers lie outside both categories; no control, no agency, no imputation.

3. Application to Facts
   • Single incident of customer proposal after locking door.
   • Company responded by reassigning territory; CEO unaware.
   • No evidence of corporate desire or substantial certainty; thus, no direct liability.
4. Rejection of Negligence Standard

   The Sixth Circuit critiques other circuits’ transplantation of coworker negligence into the customer context as analytically unsound once agency status is removed.

5. Retaliation & Race Claims

   For retaliation, absence of decision-maker knowledge is fatal. For race discrimination, plaintiff failed to supply requisite “plus” evidence in a bona fide reduction-in-force; majority of terminated employees were white, and plaintiff was not “replaced.”

3.3 Potential Impact

• Inter-Circuit Split – Sixth (and portions of Seventh) now require intent; other circuits retain negligence. Employers operating nationally face different exposure depending on geography.
• Corporate Policies – Within the Sixth Circuit, businesses may adjust resources away from exhaustive customer-harassment prevention toward ensuring swift remedial actions sufficient to negate intent inferences. Outside jurisdictions will continue to emphasize preventive monitoring.
• EEOC Litigation Strategy – EEOC’s guideline weakened; agency may litigate to preserve negligence standard or request Supreme Court clarification.
• State-Law Harmonization – Michigan ELCRA (and potentially Kentucky, Ohio, Tennessee equivalents) likely to track the federal intent standard where customer harassers are involved.
• Plaintiff Bar Considerations – Pleadings must allege employer’s intent (knowledge + deliberate tolerance or desire) when customer misconduct forms basis of claim; negligence language will not survive motions under Rule 12 or 56.

4. Complex Concepts Simplified

5. Conclusion

Bivens v. Zep, Inc. is more than a routine affirmation of summary judgment; it is a doctrinal pivot. By anchoring employer liability for customer harassment in intent rather than negligence, the Sixth Circuit rejects EEOC guidance, splits from most sister circuits, and elucidates the centrality of agency law to Title VII. Employers in the Sixth Circuit now have a higher shield, but also a clearer line: once they know customer misconduct is substantially certain to recur and still expose employees to it, intent—and liability—attach. Conversely, plaintiffs must marshal evidence of that intentional exposure.

Whether the Supreme Court will reconcile the growing split remains to be seen. Until then, Bivens stands as the new lodestar governing non-employee harassment claims within the Sixth Circuit, instructing litigants and courts alike that negligence alone no longer suffices.

© 2025 – Prepared for educational commentary purposes.