If you’ve ever thought, “Surely the law has a neat, one-size-fits-all answer for workplace harassment by customers,”
the Sixth Circuit would like to introduce you to reality. In Bivens v. Zep, Inc., the court took a hard look at
Title VII liability when the alleged harasser isn’t an employee, isn’t a supervisor, and isn’t even an “agent” of the company
just a client. The result: the Sixth Circuit rejected the EEOC’s long-standing negligence-based approach for non-employee harassment
and replaced it with a much higher bar rooted in intent.

This isn’t just a technical tweak for appellate-court trivia nights. It can change how Title VII cases are pleaded, defended,
investigated, and settledespecially in Kentucky, Michigan, Ohio, and Tennessee. It also lands in a post-Loper Bright
world where courts are more openly skeptical of agency “guidance” when it starts sounding like a rewrite of Congress’s statute.

The case that sparked it: Bivens v. Zep in plain English

What happened

Dorothy Bivens worked as a territory sales representative, visiting clients in person. During a visit to a motel client, she alleged the motel
manager locked the office door and asked her out. She refused and left. She later told her supervisor, and the account was reassigned so she
would not have to interact with that client again.

What she claimedand what the company said

Bivens sued under Title VII, arguing (1) a sexually hostile work environment based on the client’s conduct, (2) retaliation after she complained,
and (3) race discrimination tied to her termination. The employer responded that it handled the client issue by reassignment and that her
termination was part of a cost-driven reduction in force.

The district court granted summary judgment for the employer, and the Sixth Circuit affirmed. The big headline, though, wasn’t the outcome
for these particular facts. It was the legal standard the court chose for non-employee harassment.

The legal puzzle: When a customer harasses, who’s liable under Title VII?

Title VII is usually discussed like a workplace rulebook: “Don’t do discrimination. Don’t do harassment. Don’t retaliate.” Truebut the
liability mechanics matter. Title VII generally targets the employer, and employers act through people. That’s why courts spend a lot of time
on agency principles: when is someone’s conduct treated as the company’s conduct?

In classic harassment cases, courts separate scenarios:

• Supervisor harassment: the employer can face vicarious liability, subject to well-known defenses depending on the circumstances.
• Coworker harassment: courts often apply a negligence-style frameworkdid the employer know (or should have known) and fail to act?
• Third-party harassment (customers, patients, vendors): many courts historically borrowed the coworker negligence model.

The EEOC’s regulation and guidance have long reflected that third bucket: employers may be responsible when they knew or should have known
about the non-employee harassment and failed to take immediate and appropriate corrective action. That’s the “do something reasonable” standard,
and it maps nicely onto how HR teams actually operate in the real world.

The Sixth Circuit wasn’t buying itat least not as a matter of what Title VII itself requires for direct liability when the harasser is a true outsider.

What the Sixth Circuit held: Intent, not negligence, governs non-employee harassment

The court’s core move

The Sixth Circuit framed Title VII as an “intentional tort” statute. In its view, if the harasser is not the employer’s agent, there’s no
“legal bridge” to impute the harasser’s intent to the employer. That leaves only one route: direct employer liability for the employer’s
own intentional conduct.

Translation: if the customer is not your agent, the employer is liable only if the employer intended the harassment to occurmeaning the employer
either desired the outcome or was substantially certain it would happen because of the employer’s own actions.

Why this is a big deal

Most other circuits that have addressed customer/third-party harassment have applied some form of negligence theory. The Sixth Circuit openly acknowledged
it is departing from that majority approach, and it essentially said, “Yes, we’re aware we’re the odd duckand we’re fine with it.”

Practically, that’s a massive difference in what a plaintiff must prove. Under negligence, you focus on what the employer knew and whether the response
was prompt and appropriate. Under intent/substantial certainty, you’re probing whether the employer effectively chose to expose the employee to
harassing conditionsknowingly and deliberately.

How the court rejected EEOC guidance without rejecting the EEOC as a whole

“Procedural regulations” vs. substantive law

The Sixth Circuit emphasized that Congress authorized the EEOC to issue procedural regulations for Title VII’s enforcement machinery,
not to create substantive rules defining the scope of employer liability. In that framing, EEOC interpretive guidelines on substantive meaning
are not “controlling” on courts.

That matters because the EEOC’s position on non-employee harassmentespecially the negligence formulationoften functions like a substantive rule in litigation:
if you knew or should have known, you’re on the hook. The Sixth Circuit treated that as an overreach for Title VII interpretation.

Post-Loper Bright: courts say “thanks for your input,” then do their own reading

The court also leaned into the modern administrative-law vibe: even if an agency has expertise, judges must independently interpret the statute.
After the Supreme Court’s Loper Bright decision, courts are even less inclined to “defer” to agency interpretations just because the statute is ambiguous.
At most, guidance might receive respect to the extent it is persuasiveoften described under the Skidmore framework.

In Bivens, the Sixth Circuit was explicit: it did not find the EEOC’s negligence approach persuasive for interpreting Title VII liability
in the non-employee context.

What counts as “intent” in the real world?

“Intent” can sound like a villain twirling a mustache. The Sixth Circuit’s version is more subtle (and more dangerous for sloppy practices):
an employer may have intent if it keeps an employee exposed to harassment when it is substantially certain the harassment will continue.

The court pointed to scenarios from other cases where a company allegedly told employees to keep a client “satisfied,” or where management allegedly
continued assignments despite repeated harassment, potentially making the outcome foreseeable to the point of substantial certainty.

But the Bivens facts were not that. The court characterized the incident as a “one-off” event and noted that the employer was “absent from the timeline”
until after the employee reported itmaking it hard to show the company desired it or was substantially certain it would happen.

Why employers shouldn’t treat this as a “free pass”

If you’re an employer in the Sixth Circuit, you might be tempted to celebrate: “Higher standard! Fewer lawsuits! Confetti cannon!”
Not so fast. Even if Title VII direct liability is narrower for true non-agents, you still have serious reasons to act quickly and aggressively:

• Other legal theories: state civil rights laws, tort claims, and industry-specific regulations may apply different standards.
  Even within Bivens, Michigan law claims rose and fell with the Title VII analysis for that casebut that won’t always be true in every state or every claim.
• Agency and “control” disputes: plaintiffs may argue the third party was effectively acting as an agent (or that the employer’s own supervisors
  became the discriminating actor through decisions and directives).
• Retaliation risk: retaliation claims often turn on knowledge, timing, and documentation. Mishandle a complaint and your biggest problem may shift
  from harassment to retaliation.
• Business and culture: customers who harass employees are not “valuable clients.” They’re expensive liabilities with a receipt printer attached.

A practical compliance playbook that works in every circuit

Whether your jurisdiction uses negligence, intent, or interpretive tea leaves, the operational best practices don’t change much. Here’s what actually helps:

1) Treat third-party harassment like a safety issue, not a customer-service issue

When employees are in the field (sales, home health, hospitality, delivery, service calls), harassment can overlap with personal safety.
Build protocols: check-ins, buddy systems for high-risk locations, escalation contacts, and permission to leave immediately.

2) Make the reporting channel frictionless

The faster employees can report a problem, the more options you have. Provide multiple reporting methods (manager, HR, hotline, app) and
train supervisors on what to do next. One goal: eliminate the “I didn’t want to make a big deal” delay.

3) Document, document, document (but do it like a human)

Good documentation is not a 12-page novel titled “Why We Are Definitely Not Liable, Your Honor.” It’s a clear record:
what was reported, when it was reported, what you did, what you told the employee, and what follow-up occurred.

4) Use contract language with clients and vendors

If employees interact with client personnel, include behavioral expectations and consequences in contracts:
a “no harassment” clause, reporting mechanisms, and the right to reassign staff or suspend service for misconduct.
It won’t solve every problem, but it gives you leverage other than “pretty please stop being awful.”

5) Train for the scenario that actually happens

Annual harassment training that talks only about coworker conduct is like buying a fire extinguisher for a flood.
Include third-party scenarios: customers, patients, vendors, event attendees, and client-site managers. Role-play the response:
“Leave, report, preserve evidence, and we’ll support you.”

What happens next: circuit split energy and litigation strategy shifts

The Sixth Circuit’s approach widens tension with the negligence-based standard used elsewhere, which raises the possibility of further appellate
development over time. Even without Supreme Court involvement, the decision will influence how lawyers brief these cases:

• Pleading and discovery: plaintiffs will try to show the employer effectively “chose” exposurerepeat assignments, ignored prior incidents,
  pressure to appease a client, or policies that predictably enable harassment.
• Defense framing: employers will emphasize swift corrective action, lack of prior notice, and absence of deliberate exposure.
• Policy arguments: expect more fights over the weight of EEOC guidance and what “persuasive” should mean after Loper Bright.

The bottom line: in the Sixth Circuit, “should have known” is no longer the headline test for non-employee harassment under Title VIIat least when the harasser
truly isn’t an agent. But the safest, smartest workplace response remains the same: take it seriously, act quickly, protect the employee, and document the response.

Conclusion

The Sixth Circuit’s decision in Bivens v. Zep is a rare moment when a court says the quiet part out loud: EEOC guidance can inform,
but it doesn’t control, and courts will not treat it as a substitute for reading Title VII itself. By requiring proof of employer intent
(desire or substantial certainty) for non-employee harassment liability, the Sixth Circuit raised the bar well above the traditional negligence model
used in many other jurisdictions.

Still, no employer should interpret this as permission to shrug at customer harassment. The operational risksretaliation, state-law claims, safety concerns,
morale, turnover, and reputational harmremain very real. In other words: even if Title VII liability got harder to prove on this narrow theory,
being decent and proactive is still the cheapest option.

Field Notes: 5 Real-World “Experiences” That Mirror the Sixth Circuit’s Logic (Extra )

These are composite, anonymized scenarios that reflect common workplace patternsnot descriptions of any one specific company or person.

1) The “Keep the Client Happy” Sales Trap

A sales rep reports that a major account’s site manager makes comments about her body and blocks the doorway “as a joke.” Her supervisor responds with:
“He’s old-schooljust laugh it off. We can’t lose this account.” Weeks later, the rep is still assigned to the site, and the behavior escalates.
Under the Sixth Circuit’s framing, the legal question becomes: did management’s decision to keep sending her back make harassment substantially certain?
Even before lawyers enter the chat, you can see the human problem: leadership is pricing an employee’s dignity at the value of a purchase order.
That’s not “customer service.” That’s a risk-management failure with a side of moral bankruptcy.

2) The Hospital/Client-Site “Known Repeat Offender” Pattern

In environments like hospitals, group homes, or client sites, harassment sometimes comes from third parties with known histories. The operational challenge
is real: you can’t always remove the third party instantly. But there’s a difference between “we’re implementing controls” and “we’re pretending this is fine.”
If leadership knows a third party repeatedly harasses staff and still schedules employees in ways that guarantee contactwithout safeguardsthat starts to look
less like mere negligence and more like deliberate exposure. That’s exactly the kind of fact pattern that can make “substantial certainty” arguments come alive.

3) The “One-Off” Incident That Still Deserves a Real Response

Sometimes it truly is a one-time incident: an employee at a client site is propositioned, threatened, or cornered without warning. There may be no prior history,
and the employer may learn about it only afterwardlike in Bivens. Even if that fact pattern is harder to fit into an “intent” box, what companies do next
still matters. Reassignment, safety planning, and a clear message that the employee did the right thing by reporting are what prevent a one-off from turning into a series.
A legal standard might limit liability; it does not limit your responsibility to act like a responsible adult.

4) The Retaliation Boomerang

Many organizations win the “harassment theory” argument and lose the “retaliation” argument because they mishandle the aftermath. An employee complains,
and suddenly she’s labeled “difficult,” excluded from meetings, or scored harshly on performance after months of solid reviews. Even if the underlying harassment
involved a customer, the employer’s response is fully within the employer’s control. A smart system separates the complaint investigation from employment decisions
(especially reductions in force) and documents legitimate business reasons thoroughly. Otherwise, the company’s defense turns into: “We didn’t retaliate…
it just looks exactly like retaliation.” Juries love that.

5) The “Policy on Paper, Chaos in Practice” Experience

Some companies have impressive policies that read like they were written by a committee of angels with law degrees. Then real life happens:
frontline managers freeze, HR hears about the complaint weeks later, and the employee is told to “handle it professionally.” The Sixth Circuit’s decision
encourages tighter thinking about who is acting on the employer’s behalf and what choices leadership makes after learning about risk. The fix is simple (not easy):
train managers on immediate steps, empower employees to leave unsafe situations, and build a response playbook that works at 4:45 p.m. on a Friday when nobody wants
more problems. That’s when policies stop being wall art and start being protection.

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