Sixth Circuit Redefines Employer Liability For Client-Based Harassment

In an explicit departure from EEOC guidance and other federal court caselaw, the United States Court of Appeals for the Sixth Circuit recently held that an employer can only be liable for a client/customer's harassment of its employee if the employer intended for the harassment to occur. In Bivens v. Zep, Inc., No. 2:23-cv-11398, 6th Cir., a sales representative sued her former employer under Title VII and Michigan law, alleging a hostile work environment based on the actions of a customer. The trial court granted the employer's Motion for Summary Judgment and the Sixth Circuit affirmed.

The sales representative alleged that while she was in a meeting with a client, the client locked the door and asked her, at least twice, if they could date. The sales representative declined the client's advances and cut the meeting short. She reported the events to her supervisor, who reassigned the client to another sales team. The sales representative never had to interact with